Fired workers challenge restaurant chain

D'Amico and Partners officials say last fall, they notified a group of 15 employees that their names were on what's called a 'no match' list.

The list from the Social Security Administration tells employers they have employees whose names and Social Security numbers don't match. Often the discrepancies are the result of a name change from a marriage or divorce and the agency doesn't have the new information.

Angel Casique had worked for D'Amico for 13 years. His name was on a 'no match' list. D'Amico management told him to clear up the discrepancy in seven months or he would be fired.

Speaking through an interpretor, Casique says, "So, I did the correct thing and I sent in a letter to the Social Security Administration."

Casique spoke to MPR through the translation of Veronica Mendez. Mendez works with the Worker's Interfaith Network, or WIN.

The worker's rights advocacy group told Casique and his colleagues they should send letters to the Social Security Administration to straighten out the conflict.

D'Amico officials say, at first, they thought the letters would work, too. But later a company lawyer said the employees should go in person to the Social Security Administration office in Minneapolis.

MPR called the Social Security Administration and was told that the best way to clear up a 'no match' issue is to appear in person and apply for a new Social Security card.

But Veronica Mendez of WIN, says D'Amico overstepped its bounds by instructing employees to make an in-person visit.

Angel Casique says the company accepted his documentation when they hired him 13 years ago and he suspects they are unfairly singling out him and other Latino employees.

"The company appears to be assuming we're undocumented. Why? Is it because we're Latinos?" he asks.

Casique and all but one of the original 15 workers were fired. D'Amico officials say one employee took the proper steps and kept their job. Casique says he's found work elsewhere.

D'Amico spokeswoman Amy Rotenberg says the company employs about 170 people who self-identify as Latino or Hispanic.

"D'Amico does not discriminate on the basis of race, national origin, religion or any other basis," she says.

According to Rotenberg, there have been other workers who appeared on the 'no match' lists, but they either fixed the problem and still work for D'Amico, or they've left.

Over the last several years, dozens of D'Amico employees have shown up on 'no match' lists. During that time, the federal government has stepped up its efforts to crack down on businesses with undocumented workers.

Rotenberg says D'Amico saw the writing on the wall and stepped up its efforts to comply.

"There are courts that have found that employers that have 'no match' letters sitting in their files, unacted upon, have been deemed to be constructive knowledge of employing undocumented workers," she says.

That means companies can get in trouble if they knowingly employ undocumented workers.

Legal experts say 'no match' letters are neither grounds for firing employees, nor are they meant to determine the legal status of an immigrant worker.

But Rotenberg says the D'Amico workers were not fired because they appeared on a 'no match' list. They were fired because they didn't do what the company told them to do in order to clear up the matter.

The conflict surrounding the D'Amico firings may be a sign of things to come.

According to attorney Sam Myers who counsels employers on immigration law matters, Immigration and Customs Enforcement or ICE looks for ways to investigate stolen social security numbers, and 'no match' letters stand out as red flags.

"The reality is that these 'no match' letters have been coming out with increasing regularity," he says.

Myers says ICE is offering a way for companies to avoid problems if they receive a 'no match' letter.

"They were called the Safe Harbor regulations that had a series of steps that an employer should go through on receiving a 'no match' letter," he says, "with certain time periods allocated to each step and absent compliance with that safe harbor rule, the employer would be assumed to be in violation of the law."

Myers says the federal government has punished some offending employers with jail time, forfeiture of property and substantial financial penalties.

To avoid that, an employer should tell a worker whose name is on a 'no match' list to pay a visit to the Social Security office. If the case can't be resolved, the company can choose to fire the employee.

But while companies may be complying with immigration law, attorney Bruce Nestor says they may be violating Equal Employment laws.

Nestor represents employees in immigration matters. He says company lawyers who recommend firing employees may be doing what they think is best to protect the company, but the result can be problematic.

"To protect them is to err on the side of terminating people who may have some irregularity with their paperwork," Nestor explains. "But then the burden is really born by the workers and in this case, Latinos."

Nestor says Latinos often turn up on 'no match' lists because of mix-ups involving their names.

He says some Latinos use two last names that are sometimes hyphenated or run together. Nestor says a simple typo or omission of a hyphen can trigger confusion.

"So the whole point is that the system wasn't created to have the level of accuracy that's necessary to be used as an effective employment verification tool," he says.

Nestor's concerns and those of labor officials and other immigrant advocates led to a lawsuit and injunction against the proposed ICE safe harbor regulations. The regulations are under review but could become law this summer.

Regardless of what happens with the 'safe harbor' laws, it appears that the pressure will remain on employers to be vigilant, perhaps to a fault, against violating immigration laws.

Meanwhile, the dust up has already cost D'Amico a major catering job. The Headwaters Foundation moved it's annual awards banquet to a non-D'Amico location after the firings.