Farm Field Employees Often Get Notices of Social Security Mismatch
By Anthony P. Raimondo
Much has been made in the media of late regarding the Social Security Administration’s (SSA) push to address wages reported under names and Social Security Numbers that do not match the numbers in the SSA’s database.
These notices used to be quite common but were suspended by the Obama administration in 2012. In the last few years, these notices have begun to go out, and a recent increase in the notices has caught the attention of media and politicians. Employers must understand their legal obligations when they receive such a notice, and media commentators and politicians are poor sources.
What is new is that the notices no longer provide a list of employees with mismatches. Instead, employers must log on to a web site to get the names of the mismatched employees. Employers should follow the instructions carefully. Employers are not required to sign up for the Social Security Verification system in order to get the information, and should only enroll in that program if they wish to verify all employee Social Security Numbers.
The first thing to understand is that a mismatch notice is not an immigration problem. The SSA does not enforce immigration law, and is prohibited from sharing mismatch information with ICE. There are many reasons a mismatch may occur, and an immigration issue is only one of them. Never presume that an employee is undocumented, and never fire a worker simply because you receive a mismatch notice. Primarily, the notice is a payroll tax issue, as IRS regulations require employers to use reasonable diligence to obtain the correct wage reporting information from employees.
The initial step for an employer who receives a mismatch notice is to check whether there was a clerical or other error on the part of the employer that triggered the mismatch. If so, the error should be corrected, with the proper forms filed with the IRS. If there is no error, the employer should next check the employee’s I-9.
If the employee used the questionable Social Security card as a List C document to show employment authorization, then the employer must reverify the employee’s authorization to work in the United States in Section 3 of the I-9. The employee should be given 3 business days to present another List C document (such as a certified birth certificate) or a List A document (such as a US Passport or Permanent Resident Alien card). If the employee did not present a Social Security card to demonstrate his or her authorization to work, then there is no immigration issue, only a payroll tax issue.
In order to resolve the payroll tax issue, the employer must notify the employee in writing that the notice was received. The employee should be directed to resolve the issue and report the correction to the employer. The letters ask for correction within 60 days, but this is not a firm legal deadline. Generally, employers set a deadline of somewhere between 60 and 120 days to give the employee time to solve the problem. The employee should also be given a blank W-4. Some do not give a deadline and simply send a W-4 annually, although this author does not recommend that approach.
In these politically volatile times, it is important for employers to cut through the noise and understand their actual legal obligations. This way, we can avoid needless employee anxiety, needless employer stress, and we can promote smooth running operations where all involved prosper.
The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559)432-3000.
Editor’s Note: Anthony Raimondo with Raimondo & Associates filed a motion with the Fifth District Court of Appeal in Fresno to count Gerawan ballots.
SILVIA LOPEZ AND GERAWAN FARMING, INC V. AGRICULTURAL LABOR RELATIONS BOARD
COURT OF APPEAL OF THE STATE OF CALIFORNIA IN AND FOR THE FIFTH APPELLATE DISTRICT (FRESNO)
To Whom It May Concern:
On May 30, 2018, the Fifth District Court of Appeal in Fresno issued a unanimous decision that the Agricultural Labor Relations Board (ALRB) violated farmworkers’ Constitutional and statutory rights by refusing to count their ballots, essentially stripping them of their right to decide for themselves whether to be represented by a union.
Silvia Lopez and her co-workers from Gerawan Farms organized themselves in opposition to the state’s effort to force the United Farm Workers Union, a dying union looking to save itself with money from their paychecks, and through determination, organization, and civil disobedience forced the ALRB to hold what was the largest farmworker vote in history. From the dawn hours to late in the evening, thousands of farmworkers voted on whether to be represented by the union. Sadly, the ALRB, in cahoots with the union, refused to count the votes, suppressing the workers’ vote in order to protect the UFW.
Since that time, the workers have been fighting to expose ALRB corruption and get their ballots counted. While they believed that day had finally come, the ALRB has chosen to defy the court and continues to refuse to count the ballots. In fact, the ALRB refuses to confirm where the ballots are stored, or whether it has them at all.
On behalf of the Gerawan workers, Silvia Lopez has filed a motion with the Fifth District Court of Appeal in Fresno, respectfully requesting that the Court order the state to immediately open the ballots, complete the election process, and preserve the record of the election as appeals wind their way through the Court.
The workers believe, as the Court ruled, that to suppress worker votes violates not only principles of democracy, but principles of government transparency as well. In the view of the workers, there is simply no justification to refuse to count the ballots, except for a desire to avoid exposing the overwhelming worker opposition to UFW representation.
CA Supreme Court Hears Case of Gerawan Farming, Inc. vs. UFW/ ALRB
By Laurie Greene, Founding Editor
A significant labor hearing occurred at the California Supreme Court (Court) in San Francisco yesterday, the day after Labor Day, between the team of the United Farm Workers (UFW) and the California Agricultural Labor Relations Board (ALRB or Board) versus Fresno County-based Gerawan Farming, Inc. over self-determination. At stake is the right of farm workers to determine if they want to be represented by the union or not. Under scrutiny is the Mandatory Mediation and Conciliation (MMC) provision of the Agricultural Labor Relations Act that paves the road for the UFW to force unionization on all farm workers.
“Although Gerawan farm workers attempted to participate in this hearing, as well as other hearings, they were denied legal participation in the trial by the state of California and by the UFW,” according to Anthony Raimondo, of Fresno-based Raimondo & Associates and lawyer for Gerawan farm worker spokesperson, Silvia Lopez. Nevertheless, hundreds of Gerawan employees in blue t-shirts attended the proceedings and protested outside the courthouse, lending their voices, exercising their free speech and showing their legitimate Gerawan company ID cards and payroll stubs.
Dan Gerawan, who co-owns Gerawan Farming, Inc., with his brother Mike and father Ray, commented on the court hearing just after it ended. “It is frightening to see the deference that the Court gives to the ALRB. Everyone in our industry and all farm workers should be scared by the deference this Court gives to a Board that is clearly not interested in the employees’ best interests.” Describing his perceptions in the courtroom, Gerawan said, “It was Orwellian to hear the government attorneys argue that they are defending self-determination, when in fact, what they are doing is the exact opposite.”
“That said,” he continued, “I am encouraged by the questions I heard from the Court. They obviously are taking this very seriously, and I’m hopeful that they will side with our employees and us.”
Members of the UFW were also present at the Court in red t-shirts, though only one person claimed to be a Gerawan employee. Marc Grossman, spokesperson for the United Farm Workers of America and communications director of the Cesar Chavez Foundation, said that the Gerawan operation should be unionized because the UFW was elected in 1990 by Gerawan farm workers and certified in 1992 by the ALRB.
However, the UFW did not successfully reach a contract for the Gerawan farm workers, and therefore did not collect dues. Furthermore, the UFW abandoned the Gerawan farm workers for nearly 20 years.
Grossman said the Court discussed today the long-standing principle that a union is certified until it is decertified. Workers have a right to decertify the union but it has to be the workers—not the company. It is patently illegal for an employer to have anything to do with determining union representation by his or her employees.
When asked to account for UFW abandonment of Gerawan farm workers, Grossman said, “Bogus issue! The UFW never abandoned the workers at Gerawan. It repeatedly attempted to negotiate with Gerawan. At every step, it was met with virulent resistance by the company. It became apparent that only a law that would allow neutral state mediators to be brought in to hammer out a union agreement when the grower refused to do so would be the only course, and we followed it.”
Grossman asked us to read the September 5 ‘News from UFW’ press release he provided, entitled, “Giant grower challenging law giving farm workers the union contracts they voted for already owes its workers $10 million under a state-imposed union contract.” Here are excerpts:
What about Gerawan’s claim the union “abandoned” the workers for 20 years?
Even before the Mandatory Mediation statute was adopted in 2002, the ALRB and the courts consistently rejected employer claims that unions should not be deemed workers’ bargaining representatives if they allegedly “abandoned” them. It is long-established law that a union remains certified as bargaining representative until workers—and only workers—vote to decertify it. At the time of the law’s passage in 2002, Gerawan was one of the 243 companies where farm workers voted for the UFW but the companies never agreed to contracts. (See UFW-Gerawan chronology)
1995-2002: Gerawan workers and the UFW continued working to improve conditions while the ALRB stopped enforcing the farm labor law under Republican political appointees.
2002: The Mandatory Media law was enacted. The agricultural industry mounted a major constitutional challenge.
2006: The Third District Court of Appeals in Sacramento upheld the Mandatory Mediation law. The industry appealed to the state Supreme Court, which refused to take the case. The industry declined an appeal to the U.S. Supreme Court—and the law’s constitutionality was settled.
2012: The UFW sent a new negotiations request to Gerawan. At least 10 bargaining sessions failed to produce a union contract.
March 2013: The UFW requested mandatory mediation at Gerawan with the ALRB.
The above chronology vaguely refers to UFW involvement between 1995 and 2002 that remains unsubstantiated. UFW contact with Gerawan farm workers appears to have been reestablished in 2012.
The ALRB did supervise a sanctioned election for Gerawan farm workers to decertify the UFW on November 5, 2013; however, the ballots were collected, sealed and never counted.
When told that UFW representative Grossman said they never walked away, Gerawan asked, “If they didn’t abandon, then where were they for almost two decades? They did not phone us or send us a fax. They did not show up on our property. They did not inquire on behalf any of our employees. They did not file an unfair labor practice. They did nothing during that time. They abandoned our employees.”
One of Gerawan’s attorneys, Ron Barsamian, managing shareholder of Fresno-based Barsamian & Moody, stated, “I’m very encouraged. I think the Justices’ questions indicated that they understood the issue we were raising. I think they certainly read the briefs. I think they understand the difficulty in how locked-in workers, such as the [Gerawan] ones behind us, can be under the way this law works: if you have an MMC contract, [the workers] never have an opportunity to decertify the union. Even the questions asked by the justices that we expected to be against us were great, and I certainly loved the answers that Mr. Schwartz gave.”
Barsamian was referring to another Gerawan attorney, David Schwarz, from the law firm, Irell & Manella, who addressed the central issues of the case: “I think it was a full and fair hearing. I think the Court—all members—are deeply concerned about the unaccounted for two-decade [UFW] absence, an unaccountable power given to a mediator [ALRB], and uncheckable power given to the union [UFW] to compel one grower and one group of employees into this process. Ultimately, I think the justices were very much focused on and troubled by the inability of the [ALRB] agency to step in in a situation of gross abandonment where a contract is being imposed by that agency.”
The California Supreme Court typically releases it decisions and commentaries after 90 days.