The Department of Homeland Security ("DHS") recently published its supplemental proposed rule regarding how employers should respond to social security no-match letters and notices of suspect documents. The supplemental proposed rule did not change any part of the Final Rule issued by the DHS on August 15, 2007 (see Schiff Hardin Labor and Employment Update, August 17, 2007), but instead clarified the Final Rule's intentions. The DHS issued this clarification in response to the U.S. District Court for the Northern District of California's issuance of a temporary restraining order on August 30, 2007, against the Social Security Administration ("SSA") restraining the SSA from sending out its social security no-match letters (see Schiff Hardin Labor and Employment Update, September 7, 2007).

In the supplemental proposed rule, the DHS explains that the Final Rule was intended to remind employers of their obligation to take action in response to their receipt of a social security no-match letter and/or a notice of suspect documents (issued by the DHS following an audit of an employer's Employment Eligibility Verification forms (Forms I-9)). As stated by the DHS in the supplemental proposed rule, "[l]ike an SSA no-match letter, a 'notice of suspect documents' calls into question the validity of an employee's identifying information, and thus places employers on notice that the subject employees might be unauthorized to work in the United States."

The supplemental proposed rule also addressed other concerns raised by the district court when it issued the restraining order. Specifically, the proposed supplemental rule rescinds certain anti-discrimination language contained in the preamble language of the Final Rule and provides an initial regulatory flexibility analysis to address the court's concerns about potential costs to employers.

The DHS published the supplemental proposed rule in the Federal Register as a discretionary request for public comment. The question remains whether the district court will lift the restraining order imposed on the SSA as a result of the supplemental proposed rule.

The United States Supreme Court recently addressed what constitutes a "charge" for purposes of satisfying the administrative requirements of the Age Discrimination in Employment Act ("ADEA") and its regulatory scheme. In Federal Express Corp. v. Holowecki, a complainant completed the United States Equal Employment Opportunity Commission ("EEOC") Intake Questionnaire, and attached to the Questionnaire a signed six-page affidavit describing her employer's alleged discriminatory employment practices. She did not complete an EEOC charge form, however, and as a result the EEOC did not assign a charge number to the submission, did not inform Federal Express that it had received it, and made no attempt at informal conciliation. Federal Express did not learn of the "charge" until four months later, after a class of employees filed an ADEA class action against it in the United States District Court for the Southern District of New York.

Relying on the plain language of the ADEA and the accompanying guidance, Federal Express moved to dismiss the complaint on the grounds that the plaintiff had not filed a charge with the EEOC at least 60 days before suit, as required under the ADEA. The district court agreed with Federal Express, but the Second Circuit Court of Appeals reversed.

The Supreme Court affirmed the Second Circuit's reversal, holding that a "charge" is any document that can reasonably be construed as a request for action to protect the employee's rights or otherwise settle a dispute with the employer. The Court noted that the Intake Questionnaire included all information required by the regulations, and that the affidavit specifically requested that the EEOC "force" the company to stop discriminating — which the Court concluded to be a direct request for action. Under these circumstances, the Court concluded that the Intake Questionnaire and affidavit met the "request-to-act" standard of the ADEA. The Court limited the ruling, however, to claims arising out of the ADEA, and cautioned employees and their counsel against the application of this standard to other statutes enforced by the EEOC, such as Title VII, without "careful and critical examination."

This decision is important as it potentially opens the door for a broader range of documents to be considered "charges" of discrimination. It also raises the possibility that employers might not have notice of a complaint until after a lawsuit is filed. We will be monitoring the application of this ruling by the district courts and will keep you apprised of developments on this topic. Please contact any member of Schiff Hardin's Labor and Employment Group if you would like more information about this recent development.