DHS Sues to Overturn State Privacy Law

by on September 24, 2007 · 4 comments

In a breezy post on the Department of Homeland Security’s new blog, DHS Secretary Michael Chertoff writes about the federal government’s lawsuit to overturn an Illinois workplace privacy law. The “Right to Privacy in the Workplace Act” will restrict the ability of Illinois employers to enroll in the federal government’s “E-Verify” system, which runs all new employees through a federal background check to determine if they’re entitled to work under federal law. Illinois has got it right. There shouldn’t be a federal background check before you can work.

Chertoff takes on some objections to “E-Verify” one by one. Let’s take his responses one by one.

First, in 90 percent of cases, E-Verify returns an initial response within seconds. That seems pretty fast to me.

That seems pretty fast to me too. But only in 90% of cases. What about the other 10%? We know that the Social Security Administration’s Numident file causes wrong results in more than 4% of cases. That means one out of every 20 new hires would have to go submit themselves to interrogation at a DMV-like government bureaucracy before they can work.

There are about 50,000,000 new hires in the U.S. every year. (A lot of churn at the low end of the economic ladder.) Nationwide use of E-Verify would delay or debar about 2,000,000 people from starting that new job each year. That’s about 4,597 per congressional district – almost 23 per working day. Congress, expect to hear from angry voters!

And do you know what the Illinois law actually does? It bars employers from enrolling in E-Verify until SSA and DHS can make a determination within 3 days on 99% of the “tentative nonconfirmation” notices issued to employers. Your system has to work, Mr. Secretary! That seems pretty reasonable to me.

Second, while I’ll be the first to admit that no system is perfect, the data in E-Verify isn’t “inaccurate” – instead, it reflects the data in Social Security Administration and DHS databases. And this actually results in a benefit to employees: E-Verify gives people notice that they might have to correct their information in our databases if the government’s records are wrong because of things like a transposed number or misspelled name. This is important because it helps ensure that their Social Security benefits are properly credited.

You heard it here first. Bad data in government files is not “inaccurate” – it’s an opportunity!

But let’s think about this a little bit. What happens when a brazen identity fraudster decides to go in and “correct” data to make it even worse – maybe to collect my Social Security benefits. In anticipation of this kind of thing, SSA is going to make it very hard to “correct” data – even for the honest citizen.

Suspected of stealing your own identity? This system will be a trip through the looking glass – for workers who should be working!

Third, employers are not allowed to fire a worker on the basis of an initial E-Verify check. In fact, federal law explicitly states that no worker can be fired until a final determination is made concerning his or her work eligibility.

It’s a wonderful Washington self-deception – that a thing made illegal by some obscure regulation won’t actually happen.

Here’s what a rational employer in E-Verify would do: Avoid even considering hiring anyone with a Hispanic surname or a funny accent. They’re more likely to be part of the one-in-twenty who end up in limbo because of the federal background check.

Finally, the law requires that employers use the system in the same way for all their new hires, and employers that use the system sign an agreement that says they will treat everyone the same, regardless of race, ethnicity, or national origin.

I refer the reader to my previous response.

It’s wonderful to see the Department of Homeland Security opening its policies up for discussion and criticism. I think suing to prevent a state from protecting its citizens’ privacy from federal pre-employment background checks is worthy of criticism.

Update: I left a comment with a link to this post on the DHS blog. Comments there are moderated.

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