Today, Fox News host Megyn Kelly vehemently defended California gubernatorial candidate Meg Whitman (R), whose housekeeper of nine years, Nicky Diaz Santillan, came out last week claiming that Whitman employed her for nine years and knew she was an undocumented immigrant, but turned a blind eye. Whitman has flatly denied Diaz Santillan’s allegations, saying she stopped employing Nicky Diaz Santillan as soon as she learned of her immigration status shortly before she decided to run for governor in 2009. However, Diaz Santillan’s lawyer produced a 2003 letter addressed to the Whitman family from the Social Security Administration stating Diaz Santillan’s name didn’t match her Social Security number. The letter included a handwritten note from Whitman’s husband, suggesting the family knew of Diaz Santillan’s status.
In her interview Diaz Santillan attorney, Gloria Allard, Kelly insisted that the Whitman family had no legal obligation to do anything upon receiving the letter:
KELLY: There was a red flag raised and they asked Meg Whitman to follow up on it. But Gloria as you know, legally, legally, she had no obligation to follow up on that letter. And if she had questioned her maid, Nicky Diaz, about her legal status after Nicky had provided her with a drivers’ license and a Social Security Number and asserted under the penalty of perjury that she was in this country legally, Meg Whitman could’ve been subject to a discrimination violation.
ALLARD: Well I totally disagree with you —
KELLY: No, that is a fact! That is a factual statement of the law.
However, the website of Kelly’s employer provides a different interpretation of the law. According to an article posted on the Fox News website in 2007 entitled “What to Do If You Get a No-Match Letter From Social Security Administration” an employer must follow “reasonable steps” outlined by the Department of Homeland Security upon receiving what is commonly referred to as a “no-match letter.” Those steps do include verifying the employee’s documents and asking the employee to resolve the situation. But, according to Fox News, “The bottom line is that the discrepancy will only be considered resolved when and if the information sync with the records of SSA or DHS.” “Discrepancies are to be resolved within 90 days of receiving a no-match letter,” instruct Fox News. “If they are not, the employer can take action to terminate the employee; or ‘face the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien,’ be found in violation of the law.”
It’s true that by firing Diaz Santillan, Whitman and her husband could’ve opened themselves up to a potential discrimination lawsuit. However, nowhere on the Fox News website is this warning issued. Instead, Fox News coverage of no-match letters usually is reported from an angle that simply presumes that employers will fire employees who can not clarify their immigration status after receiving a no-match letter attached to their name.
Chances are if the tables were reversed and Whitman’s opponent, Jerry Brown (D-CA), was being accused of receiving a no-match letter concerning one of his employees, Kelly would not be so understanding of the legal quandary that no-match letters present to employers.
Finally, Kelly overlooks the irony of the situation. Whether or not Whitman knew Diaz Santillan is undocumented in 2003 or in 2009, and whether or not the Whitman family did the “right” thing concerning the no-match letter, her immigration platform doesn’t line up with her own experiences with the immigration system. Whitman rejects comprehensive immigration reform and a path to legalization in favor of a militarized border and a harsh crackdown on immigrants and those who employ them. “If we don’t hold employers accountable, we will never get our arms around this [illegal immigration] problem,” said Whitman. However, if Whitman can’t even hold herself accountable for hiring an undocumented worker how can she hold others accountable?