If Whitman had fired Nicky Diaz because of the mismatch letter she could have been sued.

[dkf]

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/09/30/MN931FME32.DTL

Whether or not Republican gubernatorial candidate Meg Whitman received a letter from the Social Security Administration saying her former housekeeper's false documents did not match its records, Whitman did not act unlawfully by keeping the housekeeper employed, immigration lawyers said Thursday.

In fact, had she gone ahead and fired Nicandra Diaz Santillan based on such a letter, she would have exposed herself to potential anti-discrimination violations, lawyers said.

--

Had Whitman questioned Diaz's legal status after Diaz presented documents when she was hired, Whitman again would have exposed herself to discrimination violations.

"Not only is (accepting the documents) all the law required her to do, but there's a counterbalancing anti-discrimination law that keeps her from probing further or demanding different documents," said Crystal Williams, executive director of the American Immigration Lawyers Association in Washington.

[JuniperLea]

1. Sounds like hogwash to me...

And mostly irrelevant. The SSA sent a letter... it was her obligation to fix the situation at that point, one way or another. She would have been far smarter, and showing she could actually handle the job she's going after, if she had helped this woman become a citizen. But no... her mean girl/cover-up instincts took over. She's not even a good crooked politician.

[dkf]

2. The mismatch letter is for the employees benefit...

"Nor was Diaz under any obligation to pursue the matter, Liao said. Correcting a mismatch is "primarily for the benefit of the employee," she said, to make sure they can collect all the benefits due them for their work."

It sounds to me like if we want to use mismatch letters to check for illegal workers we need to change the laws.

[JuniperLea]

14. Yet they send it to the employer...

Seems to me they intend for both to know.

Whitman needs to give this up... all the spinning is digging her deeper.

[dkf]

21. That is so the employer gives the employee the opportunity to get credit for their social security

Payments. It's not set up to catch illegal workers. I am all for changing it to do so, but that would require changes to the law.

[JuniperLea]

28. It makes no sense for them to send it to the employer...

None whatsoever. Sending it directly to the employee would give her the same opportunity. If the employee has no dog in that race, it's ridiculous to include them.

[dkf]

35. The employer sends in the funds to be credited for the employee.

They want the employer to make as sure as possible that there is no typo.

[JuniperLea]

36. It still makes no sense...

If this is the employee's responsibility, it should be sent to the employee only.

The IRS and others take in a lot of money under false SS numbers... and those people never get to file a return.

[DURHAM D]

37. Generally with a 1099 there is no SS payment to match up.

This notice is to notify EMPLOYERS that an employee is possibly not legal or has provided a bogus SS#. To state otherwise is naive.

JFTR - the possibility of Meg suffering employment discrimination charges is total bullshit.

[dkf]

41. No the purpose is not to catch fake IDs.

Look, if your employer sent in your social security payment and transposed the numbers accidentally, don't you want it to be corrected so it gets added to your payments which then determines your benefits?

THAT is the purpose of the mismatch letter.

[DURHAM D]

48. Guess you are just ignoring the W-2 vs. 1099 issue.

And, I have definitely used the notice to determine that employees have provided bad/false info for their I-9 verification.

Why are you insisting it is not used for that purpose?

[dkf]

51. Well according to this article it is not.

I guess that is where the employer puts themselves on the line as to whether they believe the worker forged documents or not. If you are using it to decline I-9s are you sure you are in compliance? I have no idea personally.

I imagine this is where a person could land up discriminating if the reject mismatches and I-9s just for people with accents or certain surnames.

[DURHAM D]

55. Yes I am in compliance. This is not nearly as convoluted as Meg and her wall of attorneys -

are trying to make it. Their point is to confuse and they have clearly succeeded.

JFTR - one time when a SS# on a 1099 was returned as invalid I went to see my good friend - the local Chief of Police. I just had a feeling that things were not adding up. She was able to determine the guy (white/U.S. Citizen) was wanted in another state. The state bureau of investigation came and arrested him at work.

[hlthe2b]

4. I agree... this is BS cover aimed to spin for Whitman

[dkf]

9. Sounds like our version of events...you get the mismatch letter for a Hispanic person, suspect them

Of being illegal, and fire them, is not the proper or legal way to do things.

There are many reasons mismatch letters can be generated, mostly due to typos, name changes, reversal of first names and last names, etc. Those things are not due to immigration status.

[Hannah Bell]

12. she got that letter in 2003 & fired the woman in 2009, but nice try.

[dkf]

15. Because that is when Diaz told her of her true status.

It is kind of a don't ask don't tell kind of thing. It had to come from Diaz.

[hlthe2b]

24. Does not make sense...

Meg had the responsibility in 2003 to follow up after receiving notice of the problem. For six years she did not. That first letter in 2003 was her first indication that the employee might be undocumented. The employee having admitted in 2009 is irrelevant. For six years, Meg looked the other way and apparently ignored requirements to follow up in the 2003 (and what appear to be other letters, depending on who you believe).

[dkf]

38. The purpose of the mismatch letter is to credit the employee, not to find illegal workers.

Therefore the follow up is not mandatory and there are laws prohibiting an employer from further requiring employees to prove immigration status.

Look I'm not happy this is the way it works because I think there needs to be mandatory followup, but these laws are in place to prevent arbitrary firing of people here legally who may be discriminated against.

[hlthe2b]

40. This is in conflict to the reporting over the past several days...

That is all I am saying... including an interview I saw with a labor attorney. Which is why I am wondering if there is not some attempt to confuse for whatever purpose.....:shrug:

[dkf]

43. Just think if everyone who got a mismatch letter gets fired with special attention to Hispanics.

For all we know that will be the outcome of this brouhaha. It is better to be aware of the pitfalls of possible unlawful discrimination.

[hlthe2b]

47. But that is NOT what I am saying... I have never said termination...

based solely on a mismatch letter was legal, expected, moral, or logical. What I said is that it is being reported that the mismatch letter also includes a requirement for follow-up and correction with the employee. Since it is sent to the employer, the assumption was that they were the respondent who had to fulfill that requirement.

[dkf]

49. But that assumption seems to be incorrect...there is no obligation for the employer to follow up.

If she fired her, I don't think it could be on the grounds that she suspected Diaz was here illegally without any evidence of such.

[hlthe2b]

52. Are you a labor lawyer, because that is not what they have been

saying. Further, it has been reported that procedures/requirements from 2003-2006 were modified since. I am not a labor lawyer, but I've heard this reported multiple times in ways that totally contradict what you are saying.

The RW wants to make it legally required to fire based on whatever flimsy evidence, but fortunately that is not the current law. She fired her in 2009 based, supposedly on her finding her to be undocumented. All of this brewhaha simply points out her hypocrisy, given she had reason to believe her to be illegal for six years, did nothing and denied that fact, yet campaigns while pointing to her hardline stance on illegal immigration and employers who hire undocumented workers.

If one wants to defend Meg for not firing in 2003, no argument. If one wants to defend her for not following up, that is questionable given reports that are conflicting, in terms of what was required, particularly those which cite repeated request letters for follow up. If one wants to defend her for firing the employee after their admission of status in 2009, well, legally required, but without offering any help whatsoever? Even paying for a consultation with an immigration lawyer? Even a paid ticket with some severance back to Mexico?

But, what one can not defend Meg for is the lies.

[dkf]

66. I'm sure we are all now confused how the law works.

I am against illegal immigration and would like it to be enforced. But it seems the law may put up too many roadblocks. If we expect employers to enforce legal labor then we need explicit laws that will allow them and force them to do so.

[pinboy3niner]

69. It is a "Request for Employer Information"

The employer is required to complete and return the form to SSA, per the instruction: "Please complete the information on the reverse and return it to us promptly."

http://tmz.vo.llnwd.net/o28/newsdesk/tmz_documents/0930_gloria_3.pdf

[DURHAM D]

50. I believe Meg got that letter every year - not just once. nt

[hlthe2b]

19. I think it is a given that to fire based on the first mismatch letter alone

would open to discrimination. On that, I agree. BUT, the letter was a notice from SS that the mismatch needed to be cleared up. That required the employer to try to do so. For six more years, apparently, she did not try to do so.

[dkf]

30. SS wants it to be cleared up so the employee is correctly credited.

Like I said in a post above, I would prefer it be changed to also verify immigration status but right now that is apparently not a purpose.

[hlthe2b]

33. I've seen contradictory information being reported...

so, who knows... Maybe that is the intent--to confuse. :shrug:

[dkf]

54. I can totally believe that these are protections against racial discrimination.

This country is not organized around finding and rooting out illegal workers. Quite the opposite.

[pinboy3niner]

22. Consider the source

These are immigration lawyers who defend undocumented immigrants.

I don't think they're covering for Whitman. With all the attention this is getting, I think their spin is designed to counter any misperceptions employers may get that a letter like SSA's either requires, or should be cause for, dismissal (with an extra warning thrown in that firing the worker could be illegal).

It's immigrant workers they're looking out for, not Whitman, even if it could be useful to her as well.

[hlthe2b]

26. Certainly to the extent any are spinning that she had a responsibility

to fire based on that 2003 letter alone. I agree.

[dkf]

45. Yes...we think we've got Meg Whitman but there are other possible consequences to this.

[robdogbucky]

65. Not so fast my friend

People are so quick to believe an illusion. Who is the group cited in this article? What have they to do with immigration? Inquiring minds wanted to know and lo and behold one of the readers contributed this after the sfgate article on same:

"What a scam, nothing on their web site involves helping little immigrants but big corporations trying to import workers to take American jobs........ The American Immigration Lawyers Association (AILA) represents businesses that have sponsored highly-skilled workers overseas who are attempting to enter the United States on a temporary or permanent basis. In July 2007, AILA filed a class action lawsuit against the United States federal Citizenship and Immigration Service, after the government rejected thousands of applications for Green cards from highly skilled immigrants."


robdogbucky sez check it out. I wonder how a biz queen would have such a response ready from such a reputable sounding outfit? It is easy for someone on Forbes' list to ask a consultant or business "friend," which outfit would be good for a business oriented quote to use in a pinch, to hit the news cycle. Worth thinking about, as everyone seems to take them at face value due to their name. What if they are financed by the National Chamber of Commerce? How would you feel about their opinion then?

I wonder what other immigration lawyers or real advocacy groups (I don't think suing to get more highly skilled immigrant workers here is really the case here). I would like to ask La Raza or other legal groups that deal constantly with immigration isssues, especially as they are out here in California.



Just my dos centavos

robdogbucky

[pinboy3niner]

76. Good catch, robdogbucky

The article describes it only as "the National Immigration Law Center in Los Angeles, which defends immigrants." The commenter could well be right, and your scenario about how this group suddenly is being cited by the press on the issue makes perfect sense. Their opinion involves a lot of spin, but for whose benefit, and based on what motivation? And how accurate or inaccurate is their opinion?

Pretty good dos centavos, amigo. :toast:

[Warren Stupidity]

3. uh - wtf? and she freaking LIED FLAT OUT ABOUT IT

Lots of people in California have hired undocumented workers, it ain't the crime that does you in here, as usual it is THE COVER UP.

Had Whitman just been honest about the whole thing, none of this would have happened.

And now back to the WTF part - Whitman subsequently fired Diaz because of her undocumented status and the problems that would cause for her campaign.

[JuniperLea]

23. She had the opportunity to become St. Margaret in the eyes of the Latino community...

If this woman was "part of her family" for over nine years, the compassionate, and politically expedient thing to do would be to help the woman become a citizen. She would have NAILED the Latino vote, and she may have swayed others who look for compassion in people. But no. Her knee jerk mean girl/cover up actions gave her away.

[county worker]

5. She was notified by Social Security that her employee's social security number didn't match

their records and she was supposed to respond which she didn't do. She said they did not know about the letter from Social Security and blames the employee for that even though her husband wrote on it and put his name on it. When they got the letter they were supposed to discuss it with the employee and get the problem straightened out. What they did was give the letter to the employee and ignored it. At that point they knew they were employing someone who might not have legal documents. They could have questioned her then. They did nothing which is a choice of action and blamed their lack of responding to the letter on the employee.

Queen Meg is a lying piece of .... but then she is a republican.

[DURHAM D]

44. You can fire anyone who provides you with false info for an I-9.

False info = invalid SS#.

However, you still have to pay them everything you owe.

[dkf]

57. No...mismatched social security number to the spelling on our erroneous social security data.

Apparently our records are not always in good order.

[DURHAM D]

64. What are you doing?

This first thing you do with the letter is check your W-2s and W-3s or 1099s and 1096 for typos.

Next you check the employees forms that they filled out and check your copy of their documents to verify all information. If there are not errors in typing or any other discrepancies you now know there is a problem. A Big Problem.

How stupid do you think business owners are?

[BlueCheese]

6. From that article...

... it sounds like Whitman and her husband did the right things in terms of what the law requires and forbids. I suppose it makes sense that you can't just fire someone for an Social Security number mismatch--imagine the lawsuit if the person is here legally and the only thing wrong was that two digits were transposed.

Given all that, does this brouhaha kind of evaporate? There's still the fact that Whitman's husband denied receiving the letter, but this happened seven years ago. People forget things.

There are plenty of reasons to not vote for Whitman. I hope this doesn't backfire.

[tabatha]

8. Well, then firing her could open Whitman up to

a discrimination suit?

She can't have it both ways.

[dkf]

13. Once Diaz owned up to being here illegally Whitman was obligated to let her go.

But Whitman herself was prohibited from pursuing it from her side

[BlueCheese]

16. I think what they'll say is

... Whitman was not allowed to fire her based only on the SSA letter, but when Diaz Santillian told them she's here illegally, then by law they had to fire her.

[dkf]

25. Exactly.

[11 Bravo]

20. By God, you're right! Let's start a fund to help Meg pay her legal bills!

[BlueCheese]

31. Uh, no.

[11 Bravo]

39. I knew my aversion to the "sarcasm" smilie would eventually lead to a response similar to yours.

I guess I had always hoped that it would come in reaction to a less obvious post. Oh, well.

[BlueCheese]

42. I knew you were being sarcastic.

But I wanted to assure you we're not at cross-purposes here.

[11 Bravo]

58. Cool, and if I misinterpreted your response, I'm sorry. Also, welcome to DU!

:toast:

[blogslut]

7. Ha!

Good old SFGate.

How does this justify that Whitman/Harsh blew off filling out and returning the SSA letter as well as choosing to throw subsequent SSA letters in the trash?

[BlueCheese]

10. Also from the article...

Lawyers said an employer's obligation upon receiving a no-match letter from the Social Security Administration is to check their own records for typographical or other errors, inform the employee that the records do not match and tell the employee to correct them.

"There is no additional legal obligation for an employer to follow up or respond to SSA with new information," said Gening Liao, a labor and employment attorney at the National Immigration Law Center in Los Angeles, which defends immigrants.

[hlthe2b]

27. Re: no further obligation to follow up... Not what has been reported

elsewhere... :shrug:

[BlueCheese]

32. Yeah, I don't know either.

[bluestateguy]

11. Perhaps, but doing nothing (which is what she did) is not acceptable either

I can't really give her the benefit of the doubt when she had 6 years to fix this.

[karnac]

17. diaz had great looking documents.

I certainly would have believed them. I would have cut her some slack too when the SSA sent that initial letter. might have even forgot about it since the other docs were so "good? where the other letters went who knows.

it's still a "she said-she said" situation.

what i'd like to see is whitman's tax returns. if she continued to claim her as an expense, that would tell me she likely *thought* she was a legal alien. who the hell claims an illegal alien as an expense if they don't have to?

If she paid her under the table, that would DEFINITELY indicate that whitman KNEW. thats how most illegals are paid.

in any case whitman is so screwed. appearance is everything. Even her 47 million dollar charity will now be ignored.

So be happy. :D

[CreekDog]

18. So what you're saying is that she didn't fire her in 2003 to uphold any law but in 2009

for political expediency.

well, that's so much better. :D

[BlueCheese]

29. I think a lot of the confusion is that...

... as I understand it, these SSA letters are not meant for law enforcement purposes, but more for proper accounting and making sure that people get their benefits. They're not meant to start investigations.

Once, one of my employers entered a completely incorrect SSN for me. I didn't find out until the SSA sent me a letter pointing this out, and asking me to resolve it. Their purpose was to make sure I got credit for the SS taxes paid for that number, not to see if I was here illegally. And if my employer then fired me for it, or investigated me for it, that would have been pretty bad.

It's possible that most such letters are sent out in response to genuine honest mistakes like that, and so nobody is really expecting anything other than a routine correction. If you took such a letter and looked into, hey, is my Mexican housekeeper really supposed to be here, I could see getting into a lot of trouble for that.

[BlueCheese]

34. Of course I might be completely wrong, too.

I shouldn't say things with such certitude.

[hayu_lol]

46. Perhaps in this case,

the employer quit paying their share and the housekeepers share of SS. It would result in payment(salary)under the table.

There is no legal way to help the housekeeper become a citizen. She would have to have returned to her home country and applied for a regular visa to the US. The waiting times are very long in many countries...could have taken years.

[DURHAM D]

53. I use the letters to help determine if an employee has an issue.

I am not interested in having an employee that can not in some way verify Employment Eligibility Status.

The amazing thing about this thread is the number of people insisting that Employers should retain illegal workers when previously those same people would have wanted them prosecuted. Good grief.

Given the amount of nonsense posted - I would like to know if anyone on this thread currently or previously has owned a company or been responsible for managing payroll.

[hlthe2b]

56. what is your understanding of your responsibilities

if the employee does not offer corrected ss number and additional documentation to explain the discrepancy? Some here are saying you can't even ask for the employee to address the discrepancy nor to fire them if they do not. Others feel that the employer is required to follow up on the letter in some manner. :shrug:

[DURHAM D]

59. People are asserting the total bullshit position of Meg's attorneys.

Any employer who does not follow up on the letters is opening themselves for all sorts of problems. I will not employee anyone with a SS# problem or any other status problem. I'm not stupid. See my post above about snagging a wanted felon.

This thread is absolutely full of crap and incorrect assertions.

[hlthe2b]

62. I think you are totally right and have posted detail below

from a labor attorney's website addressing changes to the rule in 2007

[pinboy3niner]

77. Even in 2003, when Whitman received the SSA request...

...the employer was required to complete and return the "Request for Employer Information."

The SSA documents Whitman received (provided by Allred) are here:

http://tmz.vo.llnwd.net/o28/newsdesk/tmz_documents/0930_gloria_3.pdf

[dkf]

60. I frankly did not know of all the things employers are not supposed to do.

I am amazed that we make it so hard to enforce our immigration laws but there it is. Maybe we need to change our laws.

[hlthe2b]

63. See below. It apparently DID change-- in 2007

[hlthe2b]

61. Here from a labor lawyer website: law changed in 2007

Social Security Mismatch Letters: New ICE Rule Increases Risk to Employers
08/17/2007
from http://www.seyfarth.com/index.cfm/fuseaction/publications.publications_html/object_id/b698511a-2868-43f2-8041-72ffe7e1555e

On August 10, 2007, U.S. Immigration and Customs Enforcement (ICE) announced plans to publish a final rule requiring employers who receive a social security mismatch letter to take specific steps to resolve the mismatch within a given time-frame. Under the rule, if the mismatch is not resolved and if the employer continues to employ the individual, then ICE can use the mismatch letter as the basis to find that the employer knowingly continued to employ an unauthorized worker in violation of Federal I-9 law.

The rule establishes so-called “safe-harbor” provisions describing clearly what an employer should do if it receives a mismatch letter and wishes to avoid being charged with “constructive notice” that the employee is an unauthorized worker. The regulations make clear that an employer who does not follow these guidelines will be susceptible to an I-9 violation and possible fines in the event of an audit or workforce raid.

When will this rule be effective?

The final rule was published in the Federal Register on August 14th and becomes effective thirty days following publication (on September 14th, 2007). This rule appears to be a part of the current administration’s goal of tighter enforcement of immigration rules and regulations. The administration also announced that it plans to increase civil fines for I-9 violations by up to 25 percent.

What is a mismatch letter?

The Social Security Administration (SSA) sends a Notice of Suspect Documents (also commonly referred to as a “mismatch letter”) to an employer if an employee’s name does not match the information in the SSA database—generally, the social security number (SSN). The purpose of the mismatch letter is to solicit the employer’s cooperation in correcting the discrepancy to ensure accuracy of payments and benefits to eligible workers. Although there are legitimate reasons for a “mismatch” (including clerical error and name change), it is also the case that use of a false SSN or use of an SSN assigned to someone other than the employee will cause a mismatch.

Similarly, the Department of Homeland Security (DHS) sends a “mismatch letter” to an employer if an immigration status document, or employment authorization document, was assigned to a different person, or if there is no agency record that the document was issued. Such a discrepancy may arise from a notification that had been sent to the employer by ICE as a result of an audit or investigation.

What is the existing law regarding mismatch letters?

Under current law, an employer’s course of action upon receipt of a mismatch letter is not entirely clear. Although many practitioners advise that the employer take some action to address the mismatch, the mismatch letter itself cautions the employer that the letter, standing alone, is not a basis for termination of employment.

What is changing?

The ICE safe-harbor regulation describes what an employer should do if it receives a mismatch letter in order to avoid being charged with “constructive knowledge” that the employee is an unauthorized worker.

Under the proposed regulation, what should the employer do to benefi t from the safe-harbor?

First, within 30 days of receiving the notice, the employer should check its records to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the company’s record or in communication to SSA or DHS. If there is such an error, then the employer must correct the record, inform SSA or DHS, and then verify that the corrected record has resolved the discrepancy. The employer should document the manner, date, and time of the verification.

If there is no clerical error, then the employer should ask the employee to confirm the accuracy of the record. If the employee states that the company record is incorrect, then the employer should make the appropriate changes according to the employee, inform SSA or DHS of the corrections, and verify that the corrected record has resolved the discrepancy. If, however, the employee maintains that the record is correct “as is” then the employer must ask the employee to pursue the mismatch matter directly with SSA. If the employee then provides new information that would change the record, the employer must verify the validity of the new information with SSA. If the mismatch involves a DHS document, the new rule requires the employer to resolve the discrepancy directly with DHS.

[DURHAM D]

67. At last - a reality check on a crazy thread.

Edit: Thank you so much for posting.

DU can create a train wreck of misinformation in a split second.

[dkf]

68. Didn't her husband tell Diaz to do that first time round?

" If, however, the employee maintains that the record is correct “as is” then the employer must ask the employee to pursue the mismatch matter directly with SSA"

Looks like compliance to me.

[hlthe2b]

70. In that one instance perhaps, but after repeated letters that

still stated a problem with her ss# over what has been reported as multiple times in the intervening 6 years?

Doesn't sound like they complied in the long term.

[dkf]

71. That goes back to the accusation that she took it from the mail.

Mght be unprovable.

[hlthe2b]

72. Quite possibly... but I don't think the issue is whether Whitmanc

can/should be prosecuted. As Allred has pointed out, even if you believe they received no more letters (and I do not), there was reason to believe she was undocumented, given her refusal to travel to Mexico. The issue, therefore is whether she had reason to believe her to be undocumented, yet kept her on for six years until Whitman decided to run for Governor and it became untenable. And, I have a very hard time not believing the hypocrisy to be true, if nothing else. Then there are her current lies to cover.

[DURHAM D]

75. I don't think you have followed this closely.

Nicky only got in the mail when Meg and spouse were on vacation. Otherwise - not her duty.
She got in the mail - she did not open the mail. Plus she was only paid to work 15 hours a week. Some weeks she worked more but was still only paid for 15. The point is - she did not live at their house and did not have much access to their mail.

The lie that she took the mail is no longer being asserted by Meg now the Gloria and Nicky have produced a copy of a notice letter with the husband's note on it.

For the life of me I don't understand why someone is at DU trying to provide a defense for a despicable human being, Meg Whitman, with so much passion and so little valid information. As I previously mentioned, this thread is absolutely full of misinformation and bullshit. Why is it even here? What is your purpose?

[pinboy3niner]

73. Telling an employee, "Please check this" does not relieve the employer...

...of responsibility for complying with the request for information.

[hlthe2b]

74. Yes.. the actual letter requests response from the recipient (employer)

[BlueCheese]

78. "an employer’s course of action upon receipt of a mismatch letter is not entirely clear"

Awesome. All those lawyers in Congress and practicing law, and this is the conclusion.