[Federal Register Volume 73, Number 209 (Tuesday, October 28, 2008)]
[Notices]
[Pages 63993-63994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25723]


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DEPARTMENT OF JUSTICE


Civil Rights Division; Office of Special Counsel's 
Antidiscrimination Guidance for Employers Following the Department of 
Homeland Security's Safe-Harbor Procedures

AGENCY: Civil Rights Division, Justice.

ACTION: Notice.

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SUMMARY: This notice provides guidance from the Department of Justice's 
Office of Special Counsel for employers following the Department of 
Homeland Security's Safe-Harbor Procedures pertaining to the receipt of 
``no-match'' letters from the Social Security Administration (``SSA'').

DATES: This notice is effective on October 28, 2008.

FOR FURTHER INFORMATION CONTACT: Sarah DeCosse, Office of Special 
Counsel for Immigration Related Unfair Employment Practices, Civil 
Rights Division, Department of Justice, P.O. Box 27728, Washington, DC 
20038; Phone 202-616-5594.

SUPPLEMENTARY INFORMATION: The Department of Homeland Security's 
(``DHS's'') Safe-Harbor Procedures for Employers Who Receive a No-Match 
Letter (``no-match rule'') was published as a final rule on August 15, 
2007 (72 FR 45611). The August 2007 rule was proposed to be modified by 
a Supplemental Proposed Rule that was published by DHS on March 26, 
2008 (73 FR 15944). Elsewhere in this issue of the Federal Register, 
DHS is publishing a Supplemental Final Rule finalizing its March 2008 
Supplemental Proposed rule.
    The DHS's no-match rule offers employers who receive no-match 
letters from the Social Security Administration (``SSA'') a safe-harbor 
in a related-immigration enforcement action if those employers follow 
the series of steps set forth in the no-match rule to ensure that the 
information provided by affected employees to confirm their work 
eligibility is genuine. The no-match rule provides that an employer may 
terminate an employee whose work eligibility could not be confirmed 
after the employer has followed the procedures that the rule sets 
forth.
    Employers in the United States have inquired and sought information 
regarding any antidiscrimination implications for employers who follow 
these safe-harbor procedures; specifically, when the SSA notifies the 
employer that certain employees' names and Social Security numbers do 
not match in the SSA's records, the employer follows the procedures in 
DHS's no-match rule, the employees cannot resolve the mismatch or 
successfully complete a new employment eligibility verification, and 
the employer dismisses those employees. The Department of Justice (the 
Department) issues this notice to clarify when the Department, through 
the Civil Rights Division's Office of Special Counsel for Immigration-
Related Unfair Employment Practices (OSC), may find reasonable cause to 
believe that employers following the safe-harbor procedures have 
engaged in unlawful discrimination in violation of the 
antidiscrimination provisions of the Immigration and Nationality Act, 
section 274B, which are codified in 8 U.S.C. 1324b.
    OSC enforces the antidiscrimination provisions found at 8 U.S.C. 
1324b (corresponding regulations appear in 28 CFR Parts 44, 68). 
Section 1324b protects United States citizens and certain work-
authorized persons from intentional employment discrimination based 
upon citizenship or immigration status, national origin, and unfair 
documentary practices relating to the

[[Page 63994]]

employment eligibility verification process. The law further prohibits 
retaliation against individuals who file charges with OSC, who 
cooperate with an investigation, or who otherwise assert their rights 
under section 1324b.
    OSC is required to investigate charges of discrimination alleging a 
violation of section 1324b and determine whether or not there is 
reasonable cause to believe that the charge is true. OSC may, on its 
own initiative, also conduct investigations respecting unfair 
immigration-related employment practices. It is OSC's longstanding 
practice to examine the totality of relevant circumstances in 
determining whether there is reasonable cause to believe that an 
employer has engaged in unlawful discrimination. Based upon the outcome 
of its investigation, OSC may bring a complaint before an 
administrative law judge seeking remedial relief for victims, 
injunctive relief to prevent future violations, and/or civil penalties. 
Section 1324b also provides a private right of action.
    As a threshold matter, if OSC receives an allegation of 
discrimination by an employer in applying the safe-harbor procedures, 
it will first ascertain whether the alleged victim is an authorized 
worker who is protected from discrimination under section 1324b. If it 
concludes that the alleged victim is protected, OSC will initiate an 
investigation to determine whether there is reasonable cause to believe 
that the employer has engaged in unlawful discrimination.
    An employer that receives an SSA no-match letter and terminates 
employees without attempting to resolve the mismatches, or who treats 
employees differently or otherwise acts with the purpose or intent to 
discriminate based upon national origin or other prohibited 
characteristics, may be found by OSC to have engaged in unlawful 
discrimination. However, if an employer follows all of the safe-harbor 
procedures outlined in DHS's no-match rule but cannot determine that an 
employee is authorized to work in the United States, and therefore 
terminates that employee, and if that employer applied the same 
procedures to all employees referenced in the no-match letter(s) 
uniformly and without the purpose or intent to discriminate on the 
basis of actual or perceived citizenship status or national origin, 
then OSC will not find reasonable cause to believe that the employer 
has violated section 1324b's antidiscrimination provision, and that 
employer will not be subject to suit by the United States under that 
provision.
    Employers and employees who desire additional guidance regarding 
their specific circumstances are encouraged to further explore OSC's 
Web site. Employer and employees also may call OSC for guidance. 
Employers may call 1-800-255-8155, or 1-800-237-2515 for the hearing 
impaired. The numbers for employees are 1-800-255-7688 or (202) 616-
5525, and 1-800-237-2515 for the hearing impaired. Finally, OSC has an 
extensive public education program to inform employers and employees 
regarding their rights and duties under section 1324b. Speakers may be 
available nationwide for groups of 50 or more attendees for public 
affairs events, conferences, class seminars, and workshops. To request 
a speaker, please call OSC's Public Affairs staff at (202) 616-5594 or 
fax your request to (202) 616-5509.

    Dated: October 20, 2008.
Grace Chung Becker,
Acting Assistant Attorney General for Civil Rights.
 [FR Doc. E8-25723 Filed 10-27-08; 8:45 am]
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