FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARAMARK FACILITY SERVICES, 

Plaintiff-counterdefendant-Appellee, No. 06-56662

v. D.C. No.

SERVICE EMPLOYEES INTERNATIONAL  CV-06-00608-GPS

UNION, LOCAL 1877, AFL CIO OPINION CLC,

Defendant-counterclaimant-Appellant. 

Appeal from the United States District Court

for the Central District of California

George P. Schiavelli, District Judge, Presiding

Argued and Submitted

April 10, 2008—Pasadena, California

Filed June 16, 2008

Before: Cynthia Holcomb Hall, Thomas G. Nelson, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Hall

6913
COUNSEL

Steven R. Wall and Robert Jon Hendricks, Morgan, Lewis &

Brockius, Philadelphia, Pennsylvania, and Los Angeles, California, for the defendant-counter-claimant-appellant. 

Manjari Chawla and David A. Rosenfeld, Weinberg, Roger &

Rosenfeld, Alameda, California, for the plaintiff-counterdefendant-appellee. 

Monica Guizar, National Immigration Law Center, Los Angeles, California, for the amicus curiae.

OPINION

HALL, Circuit Judge: 

I. INTRODUCTION

This case arose from the response by Aramark Facility Services (“Aramark”) to a “no-match letter” from the Social

Security Administration (“SSA”), which indicated that Ara6916 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
mark had reported information for 48 of its employees at the

Staples Center in downtown Los Angeles that did not match

the SSA’s database. Suspecting immigration violations, Aramark told the listed employees they had three days to correct

the mismatches by proving they had begun the process of

applying for a new social security card. Seven to ten days

later, Aramark fired the 33 employees who did not timely

comply. 

Local 1877 of the Service Employees International Union

(“SEIU”) filed a grievance on behalf of the fired workers,

contending the terminations were without just cause and thus

in breach of the collective bargaining agreement (“CBA”)

between Aramark and SEIU. An arbitrator ruled for SEIU and

awarded the fired workers back-pay and reinstatement, finding there was no convincing information that any of the fired

workers were undocumented. The district court vacated the

award on the ground that it violated public policy. SEIU

timely appealed. 

This case boils down to a single issue: whether the SSA’s

no-match letter — and the fired employees’ responses — put

Aramark on constructive notice that it was employing

undocumented workers. If so, the arbitrator’s award would

force Aramark to violate federal immigration law, and therefore was properly vacated as against public policy. If not, the

award must stand. 

As we explain below, Aramark has not established constructive knowledge of any immigration violations. Constructive knowledge is to be narrowly construed in the immigration

context and requires positive information of a worker’s

undocumented status. Moreover, we are required to defer to

the arbitrator’s factual findings even when evaluating an

award for violation of public policy. Accordingly, given the

extremely short time that Aramark gave its employees to

return with further documents and the arbitrator’s finding that

Aramark had no “convincing information” of immigration

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6917
violations, the employees’ failure to meet the deadline simply

is not probative enough of their immigration status to indicate

that public policy would be violated if they were reinstated

and given backpay. Therefore, the district court erred and the

award must be confirmed.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Letter Sent to Aramark and Aramark’s

Response 

Aramark is a corporation that employs approximately

170,000 people in the United States, and its facilities management division provides labor for the Staples Center, a 19,000-

seat sports and entertainment venue in downtown Los Angeles. In early 2003, Aramark received letters from the SSA

notifying it that the social security numbers of some 3,300 of

its employees nationwide did not match those in the SSA’s

database. Aramark reacted to these “no-match” letters by asking its regional managers to confirm that the information it

provided SSA matched the information provided by employees and, if so, to require corrective steps from the employees

they supervised. On April 15 and 16, 2003, instructions were

relayed to 48 Aramark employees working at the Staples Center, who were represented by SEIU and employed pursuant to

a CBA between SEIU and Aramark. Aramark’s instructions

to the Staples Center employees read as follows: 

1. Please return to the [SSA] office to correct [the]

discrepancy 

2. Return to Aramark Facility Services at Staples

Center with one of two items. 

a) A new social security card, [sic] photo

copies will not be accepted 

b) Verification form that shows a new card

is being processed. 

6918 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
3. You have three working days from the postmarked date of this letter to bring either.[ ]You

have 90 days from the date of re-application on

your receipt to bring in your new card. 

4. A new card or verification of renewal must be

in the office no later then [sic] close of business

4pm on Wednesday April 23rd, 2003. 

. . . 

If you fail to comply with this letter and you do not

bring in the proper documents then unfortunately

your employment with Aramark will be terminated.

(emphasis added). 

No employee was aware of the policy before receiving the

mismatch letter. Believing the three-day turnaround time was

too onerous, SEIU requested an extension, but Aramark

denied this request. 

Fifteen of the Staples Center employees obtained the

requested documentation in time and continued to work.

However, 33 employees did not timely comply and were

fired. The last day of work for virtually all of them was either

April 16, 2003, or April 18, 2003. Most were officially fired

effective April 23, while a few were fired April 28, 2003.

Although the instruction letters from Aramark stated that

employees were expected to visit an SSA office and provide

the initial documentation within three days, the employees

were actually given seven to ten days to provide the required

paperwork, though nothing in the record indicates that they

knew they had this much time. The fired workers were told

that they would be rehired if they supplied the required documentation; nothing indicates when they received this information. 

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6919
Though it suspected immigration violations, Aramark did

not know for sure why the terminated employees did not provide additional documents and even argued to the arbitrator

that they could have had “valid” work eligibility. Each of the

fired employees had, at the time they were hired, properly

completed the federal Employee Eligibility Verification Form

(“Form I-9”) and provided Aramark with facially valid documents establishing their identity and eligibility to work in the

United States. Moreover, Aramark was not notified by any

federal agency that its workers were suspected of being

undocumented. 

B. Arbitration 

After the terminations, SEIU filed a grievance on behalf of

the Staples Center employees, contending that Aramark had

violated the CBA by firing them without just cause. Pursuant

to the CBA, the matter was submitted to binding arbitration.

Over two days of hearings, the parties presented testimony

concerning the no-match letters, Aramark’s obligation to

comply with applicable tax and immigration laws, and the

procedures by which the Staples Center employees were fired.

Ultimately, the arbitrator concluded that there was no “convincing information” that any of the terminated workers were

undocumented. He thus found that the firings were without

just cause, ruled in favor of SEIU, and awarded the workers

back-pay and reinstatement. 

C. District Court Proceedings 

After the arbitrator’s ruling, Aramark filed a complaint in

U.S. District Court to vacate the arbitration award, and SEIU

counter-claimed to confirm it. The parties filed cross-motions

for summary judgment, and at a hearing held September 29,

2006, the district court ruled in favor of Aramark. The court

reasoned that because the fired employees failed to indicate

that they were beginning the process of correcting the SSN

6920 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
mismatch, Aramark had constructive notice that they were

ineligible to work in the United States. Therefore, the court

held that the arbitrator’s award of reinstatement and back-pay

violated public policy because it would require Aramark to

violate the immigration laws. SEIU timely appealed. 

III. STANDARD OF REVIEW

We review vacation of arbitration awards like “any other

district court decision . . . accepting findings of fact that are

not ‘clearly erroneous’ but deciding questions of law de

novo.” Barnes v. Logan, 122 F.3d 820, 821 (9th Cir. 1997)

(quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S.

938, 947-48 (1995)). Here, the district court resolved the matter on the parties’ cross-motions for summary judgment,

which necessarily present questions of law. We must therefore decide de novo whether there are any genuine issues of

material fact and whether the district court correctly applied

the relevant substantive law. See Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004); Arakaki v. Hawaii,

314 F.3d 1091, 1094 (9th Cir. 2002) (stating standard for

cross-motions).

IV. DISCUSSION

A. The Legal Standard for Review of the Arbitrator’s

Award

“The scope of review of an arbitrator’s decision in a labor

dispute is extremely narrow.” Federated Dep’t Stores v.

United Food & Commercial Workers Union, Local 1442, 901

F.2d 1494, 1496 (9th Cir. 1990). Arbitration awards are ordinarily upheld so long as they represent a “plausible interpretation of the contract.” Phoenix Newspapers, Inc. v. Phoenix

Mailers Union Local 752, 989 F.2d 1077, 1080 (9th Cir.

1993). However, one narrow exception to this generally deferential review is the “now-settled rule that a court need not, in

fact cannot, enforce an award which violates public policy.”

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6921
Stead Motors v. Automotive Machinists Lodge No. 1173, 886

F.2d 1200, 1209 (9th Cir. 1989) (en banc); accord SFIC

Properties, Inc. v. Int’l Ass’n of Machinists & Aerospace

Workers, 103 F.3d 923, 925 (9th Cir. 2003). “[T]he question

of public policy is ultimately one for resolution by the

courts.” United Food & Commercial Workers Int’l Union,

Local 588 v. Foster Poultry Farms, 74 F.3d 169, 174 (9th Cir.

1995). The public policy exception is Aramark’s sole basis for

attacking the arbitration award in this case. 

[1] “To vacate an arbitration award on public policy

grounds, we must (1) find that an explicit, well defined and

dominant policy exists here and (2) that the policy is one that

specifically militates against the relief ordered by the arbitrator.” Id. at 174 (citations and quotation marks omitted);

accord W.R. Grace & Co. v. Local Union 759, Int’l Union of

United Rubber, Cork, Linoleum & Plastic Workers of Am.,

461 U.S. 757, 766 (1983). In evaluating a public policy argument, we “must focus on the award itself, not the behavior or

conduct of the party in question.” S. Cal. Gas Co. v. Utility

Workers Union of Am., Local 132, AFL-CIO, 265 F.3d 787,

795 (9th Cir. 2001). We have stressed that “courts should be

reluctant to vacate arbitral awards on public policy grounds,”

because “[t]he finality of arbitral awards must be preserved if

arbitration is to remain a desirable alternative to courtroom

litigation.” Arizona Elec. Power Co-op., Inc. v. Berkeley, 59

F.3d 988, 992 (9th Cir. 1995). Moreover, before the award

will be vacated as against public policy, the policy violation

must be “clearly shown.” Stead Motors, 886 F.2d at 1225

(quoting United Paperworkers Int’l Union, AFL-CIO v.

Misco, Inc., 484 U.S. 29, 43 (1987)). 

Importantly, the public policy inquiry proceeds by taking

the facts as found by the arbitrator. “The parties did not bargain for the facts to be found by a court, but by an arbitrator

chosen by them . . . [.] Nor does the fact that it is inquiring

into a possible violation of public policy excuse a court for

doing the arbitrator’s task.” Id. at 1211 (quoting Misco, 484

6922 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
U.S. at 45); accord Prudential-Bache Secs., Inc. v. Tanner, 72

F.3d 234, 242 (1st Cir. 1995); Bd. of County Comm’rs of

Lawrence County, Ohio v. L. Robert Kimball & Assocs., 860

F.2d 683, 686 (6th Cir. 1988); see also Int’l Bhd. of Elec.

Workers, Local 97 v. Niagra Mohawk Power Corp., 143 F.3d

704, 716 (2d Cir. 1998) (“[I]n reviewing an arbitral award for

possible violations of public policy . . . [a] court is not authorized to revisit or question the fact-finding or the reasoning

which produced the award.”); E.I. DuPont de Nemours & Co.

v. Grasselli Employees Indep. Ass’n, 790 F.2d 611, 617 (7th

Cir. 1986) (rejecting a public policy attack because it would

“require[ ] this Court to re-find facts found by the arbitrator”),

disapproved on other grounds by Misco, 484 U.S. at 35 n.7.

Accordingly, in evaluating whether the arbitrator’s award violated public policy here, we will not revisit the arbitrator’s

factual findings, in particular the finding that there was no

“convincing information” that any of the terminated workers

were undocumented. 

B. Analysis 

As we explain below, Aramark has identified a sufficiently

explicit, well-defined, and dominant public policy — compliance with immigration law — that, in the proper case, would

be the basis for vacating an arbitration award. However, the

policy in this case does not specifically militate against the

arbitrator’s award of reinstatement and back-pay. 

1. The Asserted Public Policy 

[2] The main public policy to which Aramark points is

expressed in the Immigration Reform and Control Act of

1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359 (1986).

Specifically, Aramark cites the laws that (1) employers are

subject to civil and criminal liability if they employ undocumented workers “knowing” of their undocumented status, and

(2) the term “knowing” includes constructive knowledge. See

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6923
8 U.S.C. § 1324a(a)(1), (2);1

 8 C.F.R. § 274a.1(l). We agree

that these policies are germane to the arbitrator’s reinstatement award because they would necessarily be violated if

Aramark knowingly reinstated undocumented workers. They

are also germane to the back-pay award because the Supreme

Court has held that immigration policy precludes such awards

to undocumented workers. Hoffman Plastic Compounds, Inc.

v. NLRB, 535 U.S. 137, 148-152 (2002). These policies are

“explicit,” “well-defined,” and “dominant,” expressed not by

“general considerations” but by the IRCA, its implementing

regulations, and Supreme Court case law interpreting it. They

are therefore an adequate basis for Aramark’s public policy

attack. See S. Cal. Gas Co., 265 F.3d at 794-95 (quoting

Misco, 484 U.S. at 42).2

1

8 U.S.C. § 1324a(a) provides in relevant part: 

(1) In general 

It is unlawful for a person or other entity— 

(A) to hire, or to recruit or refer for a fee, for employment in the

United States an alien knowing the alien is an unauthorized alien

(as defined in subsection (h)(3) of this section) with respect to

such employment, or 

(B) (i) to hire for employment in the United States an individual

without complying with the requirements of subsection (b) of this

section or (ii) if the person or entity is an agricultural association,

agricultural employer, or farm labor contractor (as defined in section 1802 of Title 29), to hire, or to recruit or refer for a fee, for

employment in the United States an individual without complying with the requirements of subsection (b) of this section. 

(2) Continuing employment 

It is unlawful for a person or other entity, after hiring an alien for

employment in accordance with paragraph (1), to continue to

employ the alien in the United States knowing the alien is (or has

become) an unauthorized alien with respect to such employment.

2Aramark also argues in passing that enforcement of the arbitrator’s

award would violate tax policy, citing Treasury Department regulations

prohibiting employers from reporting incorrect SSN information to the

IRS. 26 C.F.R. § 301.6721-1(c)(2)(i). However, this policy would not

6924 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
2. Whether the Policy Specifically Militates Against

the Award 

The more difficult question is whether these policies “specifically militate” against the arbitrator’s award here — that

is, whether the arbitrator’s award would have forced Aramark

to reinstate and provide back-pay to undocumented workers

where Aramark had “constructive knowledge” that they were

undocumented. See 8 U.S.C. § 1324a(a)(1), (2); 8 C.F.R.

§ 274a.1(l). 

[3] As defined in the relevant regulation, “[c]onstructive

knowledge is knowledge that may fairly be inferred through

notice of certain facts and circumstances that would lead a

person, through the exercise of reasonable care, to know

about a certain condition.” 8 C.F.R. § 274a.1(l). We have

stressed that, for purposes of the IRCA, “constructive knowledge” is to be narrowly construed:

IRCA . . . is delicately balanced to serve the goal of

preventing unauthorized alien employment while

avoiding discrimination against citizens and authorized aliens. The doctrine of constructive knowledge

has great potential to upset that balance, and it

should not be expansively applied. The statute prohibits the hiring of an alien “knowing the alien is an

unauthorized alien . . . with respect to such employment.” 8 U.S.C. § 1324a(a)(1)(A) (emphasis added).

Insofar as that prohibition refers to actual knowledge, as it appears to on its face, any employer can

“specifically militate” against the arbitrator’s award, because the award

did not require reporting of incorrect numbers, or prohibit further verification procedures after the employees were reinstated. Aramark also suggests that it might be forced to violate RICO and the Sarbanes-Oxley Act

if the arbitrator’s award were enforced. But it has waived these arguments

by failing adequately to brief them. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir. 2003). 

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6925
avoid the prohibited conduct with reasonable ease.

When the scope of liability is expanded by the doctrine of constructive knowledge, the employer is subject to penalties for a range of undefined acts that

may result in knowledge being imputed to him. To

guard against unknowing violations, the employer

may, again, avoid hiring anyone with an appearance

of alienage. To preserve Congress’ intent in passing

the employer sanctions provisions of IRCA, then, the

doctrine of constructive knowledge must be sparingly applied. 

Collins Foods Int’l, Inc. v. INS, 948 F.2d 549, 554-55 (9th

Cir. 1991). In Collins, we reversed an ALJ’s holding that the

employer had constructive knowledge of an immigration violation because it had extended an offer of employment over

the telephone and overlooked that the employee’s social

security card was fraudulent. See id. at 551, 555-56. We distinguished other cases finding constructive knowledge on the

grounds that the employer there did not have “positive information” that the employee was undocumented. Id. at 555. In

those distinguishable cases, on which Aramark relies heavily

here, the INS specifically visited the employer and notified it

that its employers were suspected unlawful aliens and should

be terminated if inspection of their documents did not allay

the concerns. See New El Rey Sausage Co. v. INS, 925 F.2d

1153, 1155 (9th Cir. 1991); Mester Mfg. Co. v. INS, 879 F.2d

561, 564 (9th Cir. 1989).3

3Contrary to Aramark’s contention, Collins is not distinguishable on the

ground that in this case, there is no accusation of discriminatory conduct

by the employer. Collins did not involve discrimination either. Rather, the

court stressed that by too expansively viewing constructive knowledge, the

doctrine would risk encouraging employers to avoid liability through discriminatory practices. 948 F.2d at 554-55; see also Incalza v. Fendi N.

Am., Inc., 479 F.3d 1005, 1013 (9th Cir. 2007) (holding that the IRCA did

not require an employer to terminate a worker whose visa had expired but

could be readily renewed). 

6926 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
Here, Aramark essentially argues that two facts gave it constructive notice of immigration violations: (1) the no-match

letters themselves and (2) the employees’ responses (or lack

thereof). We address each contention in turn. 

a. The Letters Themselves

[4] Given the narrow scope of the constructive knowledge

doctrine, the “no-match” letters themselves could not have put

Aramark on constructive notice that any particular employee

mentioned was undocumented. To understand why, some

background on the purpose of the no-match letters is helpful.

The SSA routinely sends the letters when an employer’s W-2

records differ from the SSA’s database regarding an employee’s social security number (“SSN”). When there is a discrepancy, the SSA cannot post an employee’s social security

earnings to his or her account, and instead must deposit the

funds into a national “earnings suspense fund,” which is a

very large fund containing more than 250 million mismatched

records and totaling more than $500 billion. Social Security

Number High-Risk Issues: Hearing Before the Subcomms. on

Social Security and Oversight of the H. Comm. on Ways and

Means, 109th Cong. 60 (Feb. 16, 2006) (statement of Patrick

P. O’Carroll, SSA Inspector General), available at

http://waysandmeans.house.gov/hearings.asp?formmode=

printfriendly&id=4710 (last visited June 9, 2008).4 The

Inspector General of the SSA believes that “the chief cause of

wage items being posted to the [earnings suspense fund]

instead of an individual’s earnings record is unauthorized

work by noncitizens.” Id. However, the main purpose of the

no-match letters is not immigration-related, but rather is simply to indicate to workers that their earnings are not being

properly credited. See id. (statement of James B. Lockhart, III,

Deputy Commissioner of Social Security), available at http://

4Both the parties and amicus cite various agency and legislative materials that are not part of the record. We treat these citations as requests for

judicial notice and grant the requests. Fed. R. Evid. 201(b), (d). 

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6927
waysandmeans.house.gov/hearings.asp?formmode=

printfriendly&id=4708 (last visited June 9, 2008). 

In addition to misuse by undocumented workers, SSN mismatches could generate a no-match letter for many reasons,

including typographical errors, name changes, compound last

names prevalent in immigrant communities, and inaccurate or

incomplete employer records. By SSA’s own estimates,

approximately 17.8 million of the 430 million entries in its

database (called “NUMIDENT”) contain errors, including

about 3.3 million entries that mis-classify foreign-born U.S.

citizens as aliens. Congressional Response Report: Accuracy

of the Social Security Administration’s NUMIDENT File

(Dec. 2006), available at http://www.socialsecurity.gov/oig/

ADOBEPDF/auditt xt/A-08-06-26100.htm (last visited June

9, 2008). 

[5] As a result, an SSN discrepancy does not automatically

mean that an employee is undocumented or lacks proper work

authorization. In fact, the SSA tells employers that the information it provides them “does not make any statement about

. . . immigration status” and “is not a basis, in and of itself,

to take any adverse action against the employee.” Social

Security Number Verification Service Handbook, available at

http://www.ssa.gov/employer/ssnvs_handbk.htm (last visited

June 9, 2008). This information is included in the no-match

letters, and was added at the urging of advocacy groups such

as amicus National Immigration Law Center to combat abuses

by employers who assumed that the workers mentioned in the

letters were undocumented. 

Moreover, employers do not face any penalty from SSA,

which lacks an enforcement arm, for ignoring a no-match letter. The IRS also imposes no sanctions stemming from the nomatch letters. It requires no additional solicitations of an

employee’s SSN unless it sends a “penalty notice” to the

employer indicating that the SSN is incorrect — a notice Aramark does not contend it received. Internal Revenue Service

6928 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
Pub. 1586: Reasonable Cause Regulations and Requirements

for Missing and Incorrect Name/TINs at 8-9 (2007 Rev.),

available at http://www.irs.gov/pub/irs-pdf/p1586.pdf (last

visited June 9, 2008). The IRS also does not require any

reverification of a worker’s documents following receipt of a

mismatch notice from the SSA. See id. at 9. 

To the same effect are statements from the Office of Special Counsel of Immigration-Related Practices, which is an

agency of the Department of Justice authorized to investigate

unfair immigration-related employment practices. See 8

U.S.C. § 1324b(c). The Office of Special Counsel states that

“[a] no match does not mean that an individual is undocumented” and that employers “should not use the mismatch letter by itself as the reason for taking any adverse employment

action against any employee.” Office of Special Counsel, Frequently Asked Questions, available at http://www.usdoj.gov/

crt/osc/htm/facts.htm#verify (last visited June 9, 2008). 

As Aramark notes, the Department of Homeland Security

(“DHS”) recently has taken steps to use the no-match letters

in its enforcement of the immigration laws. In June 2006,

DHS proposed to amend 8 C.F.R. § 274a.1, which sets forth

DHS interpretations of terms including “knowing,” to include

receipt of no-match letters in its discussion of “constructive

knowledge.” Safe-Harbor Procedures for Employers Who

Receive a No-Match Letter, 71 Fed. Reg. 34281-01, 34281

(June 14, 2006). After some changes prompted by extensive

public comment, see 72 Fed. Reg. 45611 (Aug. 15, 2007), the

proposed amendment was adopted and the resulting regulation currently provides in relevant part:

The term knowing includes having actual or constructive knowledge. Constructive knowledge is

knowledge that may fairly be inferred through notice

of certain facts and circumstances that would lead a

person, through the exercise of reasonable care, to

know about a certain condition. Examples of situaARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6929
tions where the employer may, depending on the

totality of relevant circumstances, have constructive

knowledge that an employee is an unauthorized alien

include, but are not limited to, situations where the

employer . . . [f]ails to take reasonable steps after

receiving information indicating that the employee

may be an alien who is not employment authorized,

such as . . . [w]ritten notice to the employer from the

Social Security Administration reporting earnings on

a Form W-2 that employees’ names and corresponding social security account numbers fail to match

Social Security Administration records. 

8 C.F.R. § 274a.1(l) (emphases added). So, even the DHS regulations, which were adopted after Aramark received the letter at issue here and are currently subject to a preliminary

injunction,5 would not treat the no-match letter by itself as

creating constructive knowledge of an immigration violation.

Instead, the regulations would look further to “the totality of

the circumstances” and whether the employer took reasonable

steps after receiving the no-match letter. 

[6] In sum, the letters Aramark received are not intended by

the SSA to contain “positive information” of immigration status, and could be triggered by numerous reasons other than

fraudulent documents, including various errors in the SSA’s

NUMIDENT database. Indeed, the letters do not indicate that

5

In October 2007, the United States District Court for the Northern District of California preliminarily enjoined the government from enforcing

the new regulations, including through sending no-match letters that refer

to them. See AFL v. Chertoff, No. 07-4472, ___ F. Supp. 2d ___, 2007 WL

2972952, at *15 (N.D. Cal. Oct. 10, 2007). After the district court’s ruling,

the government then moved to stay proceedings pending new administrative rule-making. The district court granted the motion and stayed proceedings until March 28, 2008. DHS then proposed to repromulgate the

regulation without change. See Safe-Harbor Procedures for Employers

Who Receive a No-Match Letter: Clarification; Initial Regulatory Flexibility Analysis, 73 Fed. Reg. 15944, 15955 (March 26, 2008). 

6930 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
the government suspects the workers of using fraudulent documents. Rather, they merely indicate that the worker’s earnings were not being properly credited, one explanation of

which is fraudulent SSNs. This falls short of the “positive

information” from the government that was held to provide

constructive notice in Mester and New El Rey and held lacking in Collins. See Collins, 948 F.2d at 554-55. Without more,

the letters did not provide constructive notice of any immigration violations. 

b. Employees’ Reactions

Aramark also maintains that constructive notice resulted

from the fired workers’ reactions to the no-match letters and

Aramark’s directive to return quickly with documents from

the SSA. It argues that it provided the employees a reasonable

time in which to correct their SSN discrepancies, and that

their failure to do so is sufficiently probative of their immigration status to rise to the level of “constructive notice” that

they were undocumented. 

We disagree. Though the question is a close one, two considerations weigh against a finding of constructive notice

here: (1) the arbitrator’s findings, and (2) the short turnaround time. Moreover, contrary to the district court’s conclusion, the analysis is unaffected by Aramark’s offer to rehire

any terminated employees who later came forward with

proper documentation. 

(1) The Arbitrator’s Findings

[7] First, as we indicated above, the entire inquiry must

proceed in light of the arbitrator’s finding that there was no

“convincing information” that any of the fired workers were

undocumented. The arbitration came down to essentially the

same question that the court must answer here: whether it

could be said that the fired workers were undocumented. The

arbitrator weighed the same evidence that the parties point to,

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6931
and concluded that none of it constituted “convincing information” of immigration violations. While it is true that it is

ultimately for the court to determine whether the arbitrator’s

award would violate public policy, Foster Poultry Farms, 74

F.3d at 174, his factual findings are not up for discussion, see,

e.g., Misco, 484 U.S. at 45, and weigh strongly against Aramark’s position. Put simply, it is difficult to conclude that

Aramark had “constructive notice” — meaning “positive

information” — of a fact when there was no “convincing

information” of it.6

(2) The Turnaround Time

[8] Second, and related, is the extremely short time period

in which the workers were told they should respond before

they would be fired. Both parties spin the record to some

degree — SEIU says the workers had only three days to

respond, while Aramark stretches the period to 90 days. In

fact, workers were told they had three days from the postmark

of a letter from Aramark to return with further documentation

— either a new social security card, or a “verification form”

from SSA that a new card was being processed. If the worker

returned with the verification form, they would still have to

provide a new card within 90 days. 

This adds up to an extremely demanding policy. The initial

three-day deadline was from the post-mark of the letter from

Aramark, so, given at least one day in the mail, it meant

6

Indeed, the arbitrator’s findings completely foreclose Aramark’s reliance on arbitration testimony that “[s]ome employees came in and said

they were not able to provide the proper documentation and asked if they

could work anyways.” The arbitrator excluded this statement as hearsay.

The ruling was erroneous, as a statement from an employee in this context

would be a party admission. Fed. R. Evid. 801(d)(2). Nonetheless, we

must take the facts as found by the arbitrator, and we cannot revisit his

evidentiary rulings. See Misco, 484 U.S. at 40 (“[W]hen the subject matter

of a dispute is arbitrable, ‘procedural’ questions which grow out of the dispute and bear on its final disposition are to be left to the arbitrator.”). 

6932 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
workers had at most two days to respond. And in these two

days, the workers were expected to gather information that

would prove to SSA that they were entitled to a social security number, perhaps obtain legal representation, and navigate

their way to a SSA office during business hours while still

attending to whatever work and family obligations they had.

It seems entirely possible — even likely — that many of the

Staples Center employees concluded they could not meet the

initial deadline, and then simply stopped trying. Nothing in

the record indicates otherwise, and indeed nothing indicates

that the workers understood beforehand that they would actually have seven to ten days before their terminations became

effective.7

[9] Notably, and contrary to Aramark’s contention, its

reverification policy was significantly more accelerated than

the one envisioned by the federal safe harbor regulations

(which, as we mentioned above, were promulgated after the

arbitrator’s ruling in this case and are currently subject to a

preliminary injunction). As currently written, employers

would qualify for the safe-harbor (that is, not be subject to

prosecution on a “constructive knowledge” theory) so long as

they asked the employees to provide further documentation

from the SSA within 90 days of the date the employer

received the no-match letter. See 8 C.F.R. § 274a.1(l)(2)(i)(B).8

7Moreover, Aramark has introduced no evidence to suggest that the

“verification form” workers were instructed to obtain was actually available from nearby SSA offices. Testimony at the arbitration hearing indicated that not all SSA offices provide receipts that would evidence an

applicant’s request for a new card. So, it is entirely possible that workers

were asked to return with a document that was, in practice, unavailable.

8This 90-day deadline was adopted after staff at the EEOC recommended to DHS that the initial proposal, which would have given only a

60-day deadline, be extended because it did not provided enough time for

employees to “collect, organize, deliver documentation, and perhaps meet

with the relevant federal agency and/or seek legal advice while maintaining their work hours.” Letter from Peggy R. Mastroianni, Associate Legal

Council, EEOC (Aug. 14, 2006), available at http://www.eeoc.gov/foia/

letters/2006/vii_national_immigration.html (last visited June 9, 2008); see

also 71 Fed. Reg. 34,281, 34,285 (June 14, 2006) (proposing Rule with

60-day deadline). 

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6933
Nothing requires the employer to demand action of any kind

before 90 days, including any “verification form” indicating

that the employee has contacted SSA. Moreover, even if the

employee cannot resolve the discrepancy within 90 days, the

employer can still qualify for the safe-harbor if it completes

a new Form I-9 for the employee (using documents that do

not depend on the disputed social security number). See id.

§ 274a.1(l)(2)(iii). Had the safe-harbor provision been in

effect, Aramark could easily still have qualified for it when it

fired the Staples Center employees. This weighs strongly

against constructive notice here. 

(3) The Offer to Rehire

Perhaps realizing that it had imposed too short a turnaround time, Aramark told the workers that they would be

rehired at any point if they provided the requested documentation. Aramark relies heavily on this fact in its appeal, and the

district court found it to weigh heavily in Aramark’s favor,

stating:

It kind of startled me a little bit. In terms of the situation now and that is that none of these employees, as

I understand it, have provided anything — reconciliation to show that there’s valid social security numbers, et cetera. What is Aramark supposed to do?

Keep them on until when? 

[10] With all due respect to the district court, this question

misses the mark. It presupposes that the court, in determining

whether the arbitrator’s award ran specifically counter to public policy, could reweigh the evidence of events after the firings. This was improper: the district court should not have

disturbed the arbitrator’s implicit conclusion that the posttermination evidence did not constitute “convincing information” of immigration violations. See, e.g., Stead Motors, 886

F.2d at 1211. 

6934 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
The Supreme Court addressed a similar situation in Misco.

In that case, a manufacturing employee was fired under a policy prohibiting possession and consumption of marijuana on

company property. 484 U.S. at 32 & n.2. The employer knew

at the time of firing that the employee (1) had been arrested

for possession of marijuana at his home; and (2) had been

present in someone else’s car in a company lot where marijuana was found. See id. at 33. At an arbitration hearing, the

company learned for the first time that police had searched the

fired employee’s own car while it was parked on company

property, and had found marijuana inside. See id. The arbitrator declined to consider this evidence, however, because the

employer did not rely on it as a basis for the discharge. Id. at

34. The arbitrator found insufficient evidence that the

employee had violated company policy, and therefore ordered

reinstatement. The employer then sued in district court, which

held that the award of reinstatement violated public policy

concerning intoxicated individuals operating dangerous

machinery. Id. at 34-35. The court of appeals agreed, reasoning that the arbitrator should have considered the evidence

that marijuana was found in the employee’s own car on the

company lot. See id.

The Supreme Court reversed and specifically disavowed

the court of appeals’ reweighing of the facts based on the

post-termination evidence. It held that the arbitrator’s decision

to disregard the evidence was part of his authority to decide

procedural questions arising in the arbitration, which were not

subject to review absent evidence of dishonesty or bad faith.

Id. at 39-40. It also criticized the appellate court for making

a factual inference based on this evidence (that is, that an

employee who had marijuana in his car would, if reinstated,

likely operate dangerous machinery while under the influence). The court stated:

[I]t was inappropriate for the Court of Appeals itself

to draw the necessary inference . . . . The parties did

not bargain for the facts to be found by a court, but

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6935
by an arbitrator chosen by them . . . . Nor does the

fact that it is inquiring into a possible violation of

public policy excuse a court for doing the arbitrator’s

task. If additional facts were to be found, the arbitrator should find them in the course of any further

effort the Company might have made to discharge

[the employee] for having had marijuana in his car

on company premises. 

Id. at 44-45. 

[11] Here, similarly, the arbitrator declined to credit the

post-termination evidence — i.e., that the fired employees had

not returned with new social security documents to accept

Aramark’s offer of a rehire. True, the arbitrator did not explicitly state whether he viewed the evidence as irrelevant

because Aramark could not have considered it as a basis for

the terminations,9 or whether it was simply unpersuasive

given the variety of potential explanations why the employees

had not returned (for example, advice from the union, the

availability of other jobs, or Aramark’s failure to include an

offer of back-pay). But regardless of whether he deemed the

evidence irrelevant or unpersuasive, under Misco, the courts

cannot second-guess the arbitrator’s findings, even while conducting a public policy inquiry. The arbitrator found no “convincing information” of immigration violations, which

necessarily included any inferences that could have been

drawn from the employees’ failure to later return with docu9As SEIU notes, “arbitrators generally hold that a discharge must stand

or fall upon the reason given at the time of discharge; the employer cannot

add other reasons when the case reaches arbitration.” Elkouri & Elkouri,

How Arbitration Works 406 (6th ed. 2003) (citations and quotations omitted); see also Misco, 484 U.S. at 40 n.8 (“Labor arbitrators have stated that

the correctness of a discharge must stand or fall upon the reason given at

the time of discharge, . . . and arbitrators often, but not always, confine

their considerations to the facts known to the employer at the time of the

discharge.” (citations and internal quotation marks omitted)). 

6936 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L
ments. The district court erred by reweighing this evidence

and substituting its own judgment for that of the arbitrator. 

Moreover, the district court’s approach is problematic

because it suggests that employers could fire employees mentioned in no-match letters without providing any time at all

for a correction, since they could always defend themselves

in later proceedings on the ground that employees had still not

come forward with appropriate documentation. This risks

encouraging discriminatory practices in the name of compliance with the IRCA, in direct contravention of this court’s

teachings in Collins. 

One final point. Aramark has introduced no evidence concerning the fired employees’ actual employment status other

than that they were named in the no-match letters and did not

quickly respond to the request for further verification of their

social security status. In addition to creating no “constructive

notice,” this evidence simply does not demonstrate that any of

the workers actually were unauthorized to work, particularly

because a social security card is only one way to prove work

authorization. See Office of Special Counsel, Frequently

Asked Questions, available at http://www.usdoj.gov/crt/osc/

htm/facts.htm#verify (last visited June 9, 2008). Absent evidence that the workers were actually unauthorized, Aramark

would not violate the statute if it reinstated them. 8 U.S.C.

§ 1324a(a)(1) (providing it is unlawful to hire an alien “knowing the alien is an unauthorized alien” (emphasis added)); id.

§ 1324a(a)(2) (prohibiting knowing continued employment of

“an unauthorized alien”). 

[12] Accordingly, the public policy against knowing

employment of undocumented workers does not specifically

militate against the arbitrator’s award.10

10SEUI contends that Aramark’s reverification procedures themselves

violated public policy. We need not address this argument. True, an arbitration award that violates some public policies may at times be confirmed

ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L 6937
V. CONCLUSION

This case turns on the deference owed to the arbitrator’s

factual findings, as well as the narrowness of both the public

policy exception and the doctrine of constructive knowledge

in the immigration context. Though it seems reasonable to

suspect that some of the fired workers were undocumented,

the law did not permit the district court to rely on this suspicion in vacating the arbitration award. 

We find no issues of material fact and, even viewing the

record in the light most favorable to Aramark, conclude that

SEIU is entitled to judgment as a matter of law. The decision

of the district court is REVERSED and the matter

REMANDED with instructions to confirm the arbitration

award. See Foster Poultry Farms, 74 F.3d at 173 (“An arbitration award must be confirmed as long as the arbitrator is

even arguably construing or applying the contract and acting

within the scope of his authority.” (citations, quotation marks,

and alterations omitted)). 

because of countervailing considerations. See Virginia Mason Hosp. v.

Wash. State Nurses Ass’n, 511 F.3d 908, 917 (9th Cir. 2007) (citing E.

Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S.

57 (2000)). But here, we conclude that public policy does not militate

against the arbitrator’s award here, so there is no need to balance competing interests. 

6938 ARAMARK FACILITY SERVS v. SERVICE EMPLOYEES INT’L