Immigration Law

Ninth Circuit Ruling on Constructive Knowledge of Immigration Status

By John Combs

The U.S. Court of Appeals for the Ninth Circuit recently confirmed an arbitration award requiring Aramark Facility Services to reinstate 33 janitors that it fired after receiving no-match letters from the Social Security Administration and giving the workers only a few days to correct the discrepancy

This case arose from the response by Aramark Facility Services to a ?no-match letter? from the Social Security Administration, which indicated that Aramark had reported information for 48 of its employees at the Staples Center in downtown Los Angeles that did not match the SSA's database. Suspecting immigration violations, Aramark told the listed employees they had three days to correct the mismatches by proving they had begun the process of applying for a new social security card. Seven to 10 days later, Aramark fired 33 employees who did not timely comply.

Local 1877 of the Service Employees International Union filed a grievance on behalf of the fired workers, contending the terminations were without just cause and thus in breach of the collective bargaining agreement between Aramark and SEIU. An arbitrator ruled for SEIU and awarded the fired workers back-pay and reinstatement, finding there was no convincing information that any of the fired workers were undocumented. The district court vacated the award on the ground that it violated public policy. SEIU appealed.

On appeal, the Ninth Circuit expressed its view that ?this case boils down to a single issue: whether the SSA's no-match letter--and the fired employees' responses--put Aramark on constructive notice that it was employing undocumented workers. If so, the arbitrator's award would force Aramark to violate federal immigration law, and therefore was properly vacated as against public policy. If not, the award must stand.?

After detailed review of the record, the Ninth Circuit concluded that Aramark had not established constructive knowledge of any immigration violations and confirmed the arbitrator?s award:

Constructive knowledge is to be narrowly construed in the immigration context and requires positive information of a worker's undocumented status. Moreover, we are required to defer to the arbitrator's factual findings even when evaluating an award for violation of public policy. Accordingly, given 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 backpay. Therefore, the district court erred and the award must be confirmed.

The Court was careful to explain that this decision was a narrow one.  The combination of its deference to the arbitrator and Aramark's three-day rule with the affected employees played important roles in this decision.  The Court hinted that different facts--e.g., if Aramark followed DHS's proposed 90-day timeframe to react to no-match letters--might have led to a different conclusion.

Full post as published by Immigration Law for Employers on July 15, 2008 (boomark / email).