A federal district court judge from the Northern District of California ruled that the government cannot use mismatched Social Security data to root out illegal immigrants from the workforce, declaring that such enforcement actions would do 'irreparable harm to innocent workers and employers." Judge Breyer issued a preliminary injunction temporarily preventing the Department of Homeland Security from beginning a program to punish companies that do not clear up discrepancies between their workers' names and Social Security numbers within 90 days after receiving a letter from Social Security advising them of the discrepancy.

What does this mean for employers? What should they do if they are faced with an employee's name that does not match the Social Security Number? Employers have to tread lightly in California in summarily terminating employees because of discrepancies in Social Security numbers. Mismatched Social Security data could be evidence that someone is unauthorized to work, or it could also be caused by a typo or name change. If an Employer takes the position that an employee with a mismatched Social Security number is unauthorized to work and therefore should be terminated, the employer is looking for trouble.

First, the new Homeland Security provisions place a burden on employers to comply with a new 90-day time frame for resolving mismatches. The scope of the rule would have staggering effects on employers, prompting them to develop costly personnel systems and fire workers who may be legally employed, thus exposing them to liability for wrongful termination. The liability exposure for employers summarily terminating employees with mismatched numbers could be staggering.