An employer group seeking to delay new Department of Homeland Security immigration regulations has taken a page out of Martin Luther’s book.

When he disagreed with Catholic church practices, Luther tacked his 95 theses to the door of the Castle Church in Wittenberg, Germany, on October 31, 1546. His list of questions about ecclesiastical governance helped spur the Protestant Reformation.

The letter that the Essential Worker Immigration Coalition sent to DHS Secretary Michael Chertoff on August 27 has not yet had the same impact on secular government as Luther’s missive did on the church. But the group’s goal—to slow down implementation of a no-match letter rule that would force companies to fire employees if their work authorization is not confirmed within 90 days—got a boost when a San Francisco federal judge issued a temporary restraining order on the DHS regulation until an October 1 hearing.

The judge was responding to a suit brought by the AFL-CIO and the ACLU. But the EWIC must be happy with the result so far. And it gives the EWIC’s arguments against the rule, which are couched in the language it uses to frame its questions, some more airtime.

The EWIC is composed mostly of construction, landscaping, restaurant, food processing and hospitality companies and trade associations.

Thanks to this blog, I can list some of the provocative questions that I didn’t have room to include in this story that I wrote for the News in Brief section of our home page:

Halt of DHS No-Match Rule Provides Employers No I-9 Reprieve (9/5/07)
http://www.workforce.com/section/00/article/25/09/54.html

The EWIC says that it is providing the DHS with a list of frequently asked questions—or perhaps trying to overwhelm it with queries.

Some seem a bit silly. For instance:

• Should I stop hiring foreign-born applicants so I don’t have to worry about any of this? (Sure, if you want to be sued for civil rights violations.)

Some questions seem to be cries for help in sorting out what the new rule means on daily business operations:

• Should I have all my employees complete a new I-9 form?

• What do I do if I can’t find labor??? Beyond the short-term shock … what about the long term?

• If you don’t terminate, then what?

• DHS indicated it was going to first target employers with 10 or more no-match letters. How would that affect a company with 35 restaurants in 15 states? Does that mean that receiving 10 total letters for all 35 restaurants and their employees or would it mean any one restaurant location that receives 10 or more letters?

• Is an employer required to still pay an employee who has received a no-match letter while they are trying to resolve any discrepancy?

Some are questions that may have to be sorted out by the courts:

• Are DHS and the Social Security Administration sharing information on who receives the no-match letters? If so, pursuant to what authority?

• What is DHS’ authority for increasing civil penalties by 25 percent?

• What happens if a lower-level employee has knowledge of a worker’s unauthorized status, but doesn’t relay that information to the hiring authorities at the company and the company complies strictly with the safe harbor provisions? Is the company protected from liability?

• If an employer terminates an employee based on no-match information and it is later revealed that the problem was with the information stored in the database, is the employer protected from legal action from the terminated employee?

• Since large employers may have several dozen no-match numbers, what happens if these are not all resolved in 90 days?

As I’ve covered the Washington business lobby for the past couple years, it seems to me that it sometimes whines too much about legislation and regulations. After all, no matter what happens in the nation’s capital, profits keep soaring.

But in this case, it does look as if DHS should offer a better explanation of the practical effects of its rule. In fact, I’m curious: How will it affect your HR operations?

I look forward to your comments.