The Delaware Department of Labor (DOL) intends to fight back on the U.S. Immigration and Customs Enforcement's (ICE) request for payroll information for 15 businesses located within Delaware.
The ensuing legal battle appears to be one of the first known court cases in Delaware over ICE's ramped up efforts to fulfill President Donald Trump's promise within his inaugural address to deport "millions and millions" of people.
As first reported by The News Journal/Delaware Online, Delaware's new U.S. Attorney Julianne Murray, former Delaware GOP chair and a public ally of President Trump, asked a judge to force DOL to hand over local businesses' payroll information to ICE.
In court documents obtained by The News Journal, Immigration Special Agent Kimberly Caraway wrote that since February, her office has been investigating reports that various Delaware businesses employ undocumented individuals.
Delaware District Court Chief Judge Colm F. Connolly summoned the attorneys representing DOL and Murray to his courtroom on August 6 for a show cause hearing.
The hearing gave DOL's counsel, Jennifer-Kate Aaronson with the Delaware Department of Justice (DOJ), the opportunity to state why the department has not complied with the subpoenas thus far.
According to a transcript of the August 6 hearing obtained by Delaware Public Media, ICE issued at least 5 subpoenas in total to DOL starting in February, all requesting various wage records.
Aaronson says one subpoena was for "specific information of a specific person regarding wages." She says DOL responded to that subpoena.
The remaining requests were over payroll information for 21 businesses. But the fourth and final superseding subpoena — issued on April 7 — notified DOL that information for six of the businesses were no longer necessary.
The 15 businesses in question remain unknown to the public, and according to Aaronson, the businesses themselves have not been notified either.
Murray's office filed a motion seeking to keep the subpoena with the list of businesses sealed from public inspection, and Connolly signed an order keeping the documents sealed on August 1.
But Aaronson intends to file a motion for those documents to be unsealed.
Not only does she argue Caraway's conversations with DOL employees over the information requests were not confidential in the first place, but she says the businesses in question should be involved, if they so choose, in the litigation.
"Those business reports, the wage reports, are the confidential business records of those employers. There are strong, compelling policy reasons for those interested parties to be able to put forth their position on the disclosure of their records in this particular case," Aaronson told Judge Connolly.
Aaronson also explains there was extensive back-and-forth between DOL and Caraway from February to April, noting the requests did not include proper federal employer ID (FEID) numbers and/or addresses and names didn't match up, which she argues is part of the reason why the requests were not fulfilled.
Ultimately, Aaronson says she intends to argue on behalf of DOL as to why the payroll records should not be released.
While the merits of the case have not yet been debated, Aaronson told Judge Connolly that releasing the requested wage reports would be a breach of confidentiality under state unemployment compensation law.
She explains the requested wage reports are used by the Unemployment Insurance Division to calculate the taxes employers pay into the state's Unemployment Insurance Trust Fund.
These funds are then used to pay out unemployment benefits to eligible claimants who lose their job through no fault of their own.
Aaronson worries if businesses catch wind of DOL being the potential source for sensitive information handed over to ICE, they could stop filing their wage reports — which include employees' names, addresses and Social Security numbers — all together, which in turn could put "the entire mission and purpose of the Unemployment Insurance Compensation Fund" at risk.
"If DOL, as the third-party holder of these confidential records, starts just disseminating them, it is a disincentive for businesses to actually file them. It would have a chilling effect and potentially have a massive or enormous effect on the state trust fund that literally funds the claims," Aaronson explains.
She also argues there are other ways for ICE to get the requested information.
Assistant U.S. Attorney Claudia Pare is representing Murray's office in the case.
"The United States Homeland Security investigations served an administrative subpoena on the Delaware Department of Labor. It did so pursuant to the authority given to it by congress under the Immigration and Nationality Act. It issued the subpoena several months ago. And up until today, the United States was given no reason why records had not been produced in response to that subpoena," Pare told Judge Connolly, noting that after the fourth subpoena, it was "absolute crickets" from DOL.
Pare also notes Murray's office would object to the subpoenas being unsealed and doesn't believe the involvement of the businesses are relevant to the question of if the documents should be turned over to ICE.
Gov. Matt Meyer recently signed a slate of bills aimed at protecting civil liberties and undocumented immigrants, including one prohibiting local law-enforcement agencies from entering into agreements with ICE to enforce immigration violations or share immigration enforcement related data.
"Since taking office in January, our administration has consistently prioritized protecting Delawareans from federal overreach that undermines our core values of fairness, dignity, and community trust. The recent federal subpoena directed at the Department of Labor is precisely the kind of government intrusion that we have fought against. Hard-working Delawareans deserve to have their rights and privacy protected. Delaware will continue to uphold the law, protect individual rights, and promote a compassionate and inclusive state for every resident," Gov. Matt Meyer said in a statement in response to the case.
Attorney General Kathy Jennings agrees with the governor, noting DOJ is "proud" to represent DOL in the case.
"We will continue to work closely with Gov. Meyer and the Department of Labor to defend the rule of law, the rights of businesses and individuals alike to due process, and the Constitution," Jennings said in a statement.
Judge Connolly set August 29 as the date for Aaronson on behalf of DOL to brief Murray's office on the merits of its refusal to turn over the documents. Pare's reply, on behalf of Murray's office, is due September 12.
Aaronson told Connolly she intends to file the motion to unseal the subpoenas or to notify the involved businesses in a way "that the Court would consider appropriate" by Wednesday, August 13.
