In the U.S. District Court for the Northern District of California yesterday, Judge Charles Breyer dismissed the court case against the Department of Homeland Security's no-match regulation, ending a two-year legal battle between the federal government, business groups, labor organizations, civil liberties and immigration rights groups. The dismissal of the case - in which United Fresh served as one of the business plaintiffs - follows an October 8 announcement that DHS was rescinding the controversial rule which targeted employers with undocumented workers.

The rule was an attempt by DHS to provide guidance to employers on what the department believed was a correct response to a no-match letter from the Social Security Administration or an equivalent notification letter from DHS.

That, however, is not where the department's guidance stopped. A separate section of the rule sought to broaden the definition of "constructive knowledge" as it is used in reference to the employment of individuals who are not authorized to work in the U.S. The regulations did this by including the receipt of a Social Security or DHS equivalent no-match letter as one of the ways DHS could prove that an employer had "constructive knowledge" that it had an unauthorized worker on its payroll.

Current federal law prohibits an employer from "knowingly hiring" or "continuing to employ" a worker who is not authorized to work in the U.S. In addition to actually knowing an employee is unauthorized to work - referred to as "actual knowledge" - employers can also learn that the employee is not authorized to work through "constructive knowledge."

Accordingly, the DHS rule claimed a "reasonable person" could infer an employee's unauthorized status through receipt of a no-match letter. Therefore, according to DHS, it could reasonably expect a company to take steps to ensure that an employee is truly authorized to work. If the company does not take the suggested steps and DHS finds that the employee is an unauthorized worker, the company could be held liable for continuing to employ an unauthorized worker.

"From the outset, United has been committed to making sure our members fully understood and were prepared to comply with this regulation. At the same time, however, we continued to oppose processes that created uncertainties and disruptions throughout a broad sector of our produce workforce," said United Fresh Senior Vice President of Public Policy Robert Guenther.  "We are pleased all of this has come to a conclusion and the industry was not burdened with an unworkable program."