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When it comes to government use of employment rules to press its national security efforts, things have not been going well for the Bush administration in the courts. First, a federal judge in San Francisco on Oct. 10 stopped government plans to enlist the nation’s employers to rid the workplace of illegal immigrants. An injunction, issued by U.S. District Judge Charles Breyer, blocks government letters that threaten prosecution of employers that fail to fire workers whose Social Security numbers don’t match government records. AFL-CIO v. Chertoff, C07-4472CRB (N.D. Calif.). One day later, the Ninth Circuit U.S. Court of Appeals temporarily blocked a new, more intrusive, background check that is part of a national program standardizing government identification cards among contractors. The new background checks were opposed by 28 scientists at NASA’s Jet Propulsion Laboratory in Pasadena. Many of the scientists have worked at the lab for 20 years or more. Nelson v. NASA, 07-56424. In addition, a few states face legal challenges over their attempts to mandate employer use of a voluntary federal system, called E-Verify, to check for undocumented job applicants. Arizona faces a federal suit and Oklahoma may have one when its law takes effect on Nov. 1. A WIDER CHALLENGE In the NASA background-check case, “the requirement of background investigations for nonsensitive positions is being implemented throughout the government,” said Virginia Keeny, an employment and civil rights lawyer at Hadsell & Stormer in Pasadena who is representing the scientists. Keeny said this may be the first challenge to a portion of a much wider Commerce Department program to create uniform identification badges for federal workers and government contractors. “Our clients are deeply concerned that the information gathered about them will be used to deny access to the lab based on false or trumped-up information from neighbors or others,” Keeny said. “They believe it harks back to the blacklist of the 1950s, when scientists’ careers were ruined when their loyalty was questioned,” she said. Justice Department spokesman Charles Miller declined to comment on either case. The NASA background checks can include questioning of any source, from former spouses or employers, a school, acquaintances or neighbors. Information may include financial problems, mental health, sexual orientation or past drug use or whether drug treatment was sought. The broader national “smart card”-based IDs will develop uniform identification cards among 67 federal agencies, representing 860,000 federal workers and contractors. Those begin going out later this year under a 2004 presidential directive. In the Social Security case, the district judge refused to allow the Department of Homeland Security to enforce a rule that would put employers on notice that they must match up Social Security numbers with names of workers or face penalties for keeping unmatched workers employed. “It is undisputed that the ‘no match’ occurs for a bunch of reasons that have nothing to do with unauthorized work,” said Scott Kronland of San Francisco’s Altschuler Berzon, who represents the AFL-CIO union federation in the no-match case. Reasons vary from clerical mistakes to people who change their names through marriage or divorce, or the different naming conventions in Asia or Latin countries that change the order of surnames, he said. The Government Accountability Office has estimated that 70 percent of the errors in the Social Security database turn up native-born citizens, according to Lucas Guttentag, executive director of the American Civil Liberties Union’s Immigrants’ Rights Project and an attorney for the plaintiffs in the suit. An employee may have little more than 60 days to prove the list is in error and fix it or lose their job, Guttentag said. “That essentially puts a gun to the head of an employer to say they must force an employee to correct it or terminate them,” he said. Other local efforts to mandate checks for undocumented workers include Pennsylvania and Texas. In Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (2007), a Pennsylvania city required citizenship verification for any employment. Pamela A. MacLean is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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