Tuesday, March 25, 2008
Without conceding any of the issues in the pending litigation, on March 21 the Department of Homeland Security announced that it will soon transmit a 44-page supplemental proposed rulemaking to the Federal Register that addresses the issues raised by Judge Charles Breyer of the Northern District of California when he enjoined the release of the agency's "no-match" regulation in October 2007 (AFL-CIO v Chertoff, NDCal, No 3:07-cv-04472-CRB).
Without altering any of the steps an employer can take upon receipt of a "no-match" letter, the supplemental rulemaking instead: (1) clarifies DHS's policy on such letters; (2) alters the regulation's anti-discrimination language; and (3) provides an initial regulatory flexibility analysis. The supplemental rulemaking will likely appear in the Federal Register in the next few days, according to Amy Kudwa, DHS spokesperson, and will provide 30 days for public comment. Upon publication, DHS will seek to have Breyer's preliminary injunction dissolved.
I don't think this supplemental rulemaking addresses the concerns brought up in Judge Breyer's decision and so it does not seem this move by DHS changes anything.
In the absence of federal regulations, states like Mississippi have taken matters into their own hands. Governor Haley Barbour just signed into law the Mississippi Employment Protection Act, requiring all employers to verify the legal status of their new hires using the federal government's E-Verify program. Here's hoping that Governor Barbour's next employment bill is one that sets up a Mississippi anti-discrimination law, as Mississippi remains one of three states in the country without a state anti-discrimination agency or law.
As I tell my students, that's because Mississippi doesn't have discrimination anymore.