Ninth U.S. Circuit Court of Appeals' Decision Orders The Reinstatement Of 33 Janitors Who Were Fired Because Their Social Security Numbers Did Not Match

A decision by the Ninth U.S. Circuit Court of Appeals in San Francisco ordered this past Monday the reinstatement of 33 janitors in Los Angeles who were fired because their Social Security numbers did not match the government’s database. The janitors worked for Aramark Facility Services (“Aramark”) at the Staples Center in Los Angeles. After receiving “no-match” letters in 2003 stating that 48 employees’ Social Security numbers did not match the federal database, Aramark gave the employees three (3) days to clear up the problem. A number of them were able to fix their problems, but 33 could not and were fired.

The Ninth U.S. Circuit Court of Appeals’ decision states that "[G]iven the extremely short time that Aramark gave its employees to return with further documents and the arbitrator’s finding that Aramark had no “convincing information” of immigration violations, the employees’ failure to meet the deadline simply is not probative enough of their immigration status to indicate that public policy would be violated if they were reinstated and given back pay. Therefore, the district court erred and the award must be confirmed." (Aramark v. SEIU, June 16, 2008.)

Today’s issue of the San Francisco Chronicle states that the “decision by the Ninth U.S. Circuit Court of Appeals did not address the legality of the administration’s so-called no-match rule, which a federal judge [Charles Breyer] blocked in October. That rule would threaten employers with civil fines and criminal prosecution unless they fired workers who failed to clear up discrepancies between their Social Security numbers and government records. But in ordering the Los Angeles janitors rehired with back pay, the court said employees can’t be fired merely because the Social Security number they submit differs from the number in the government’s files - a major issue in lawsuits over t he administration’s plan."

Judge Cynthia Holcomb Hall, one of the most conservative jurists on the Ninth Circuit court, wrote the decision. In the decision Judge Holcomb Hall noted that Aramark’s three-day time limit given to the employees to resolve their no-match problems was much shorter than the timetable provided by the Bush administration’s proposal, which would give an employer 93 days to obtain a matching Social Security number from an employee before facing penalties for knowingly employing an illegal immigrant. This case could certainly have an impact in our state.