Security Screening Process Flawed, Leaves Dockworkers Jobless
Security Screening Process Flawed, Leaves Dockworkers Jobless
http://blog.aflcio.org/2009/07/09/report-security-screening-process-flawed-leaves-dock-workers-jobless/
Report: Security Screening Process Flawed, Leaves Dockworkers Jobless
by Mike Hall, Jul 9, 2009
Thousands of longshore workers, truck drivers and other workers at ports across the nation are out of work, not because of a staggering economy, but because they are caught up in a backlogged, inefficient and often inaccurate screening process for background security checks.
According to a new report from the National Employment Law Project (NELP), the federal Transportation Security Administration’s (TSA’s) post-Sept. 11 port worker background checks have put thousands of otherwise qualified and experienced port workers on the streets instead of the docks, with no rights to back pay once they gain their security clearance.
Most of the workers caught in this bureaucratic limbo are members of the International Longshore and Warehouse Union (ILWU), Longshoremen (ILA) and Teamsters (IBT).
The report is the first evaluation of the worker protections in TSA’s Transportation Worker Identification Credential (TWIC). It finds that thousands of workers—disproportionately African American and Latino men—have had to wait an average of seven months while their applications are reviewed, leaving them unable to work and support their families in the midst of a devastating recession.
According to the report, “A Scorecard on the Post-9/11 Port Worker Background Checks,” more than 10,000 workers had lost their jobs while awaiting TSA approval of their TWIC cards after the April 14 compliance deadline passed. Laura Moskowitz, a NELP attorney who led the study, says:
Due to serious problems with the FBI’s records, insufficient staffing and poor TSA screening protocols, there have been major processing delays for workers at ports, which means that large numbers of hard-working families are being left out in the cold at the worst possible time.
To be approved for access to the ports, applicants are subject to criminal background checks using the FBI’s database, immigration status and other security checks. However, the report notes that 50 percent of the FBI’s rap sheets are incomplete or out of date. Contrary to the federal law, TSA denies credentials in an overly broad range of cases such as open arrests, even if they have been dismissed or addressed.
When a worker is denied a security clearance and decides to appeal, Moskowitz says:
TSA and the FBI put the entire burden on the worker to collect the necessary information to clear their records and navigate the process all on their own, which then leaves thousands of workers falling through the cracks of the TWIC program.
It also finds that while worker protections in the program’s appeal process take far too long, eventually almost all workers win their credential cards on appeal. More than 24,000 workers, largely African American and Latinos, were able to keep their jobs with the help of the special protections for workers who are initially denied a credential card based on their record.
The report offers a series of recommendations for TWIC reform, including expediting the cases of workers who have been shut out of the ports, tracking down missing FBI information before issuing denials, adopting strict timeframes for processing applications and better handling of applications from foreign-born workers.
http://nelp.3cdn.net/2d5508b4cec6e13da6_upm6b20e5.pdf
National Employment Law Project
July 2009
A Scorecard on the Post-9/11 Port Worker Background Checks:
Model Worker Protections Provide a Lifeline for
People of Color, While Major TSA Delays Leave
Thousands Jobless During the Recession
NELP
75 Maiden Lane, Suite 601, New York, NY 10038
www.nelp.org • (212) 285-3025
National Employment Law Project • July 2009
NELP
NELP
75 Maiden Lane, Suite 601, New York, NY 10038
www.nelp.org • (212) 285-3025
A Scorecard on the Post-9/11 Port Worker Background Checks:
Model Worker Protections Provide a Lifeline for
People of Color, While Major TSA Delays Leave
Thousands Jobless During the Recession
Authors
Maurice Emsellem
Laura Moskowitz
Madeline Neighly
Jessie Warner
This report was made possible with the generous support of the
Open Society Institute for NELP’s Second Chance Labor Project.
NELP is a non-profit research and advocacy organization that partners with local communities
to secure the promise of economic opportunity for today’s workers. This paper is the product
of NELP’s Second Chance Labor Project, which promotes the employment rights of people
with criminal records and fairness in criminal background checks.
National Employment Law Project • July 2009
NELP
Table of Contents
Introduction .........................................................................................................................
The Basics of the TSA Port Worker Background Checks ..............................................
The TWIC Waiver and Appeal Procedures Are the Lifeline to the Jobs ........................
of Over 30,000 Port Workers, Especially African Americans and Latinos
Major TWIC Delays Leave Port Workers Jobless, Especially Workers .........................
of Color, While Appeals and Waivers Languish at TSA
Recommendations for TWIC Reform ...............................................................................
Endnotes .............................................................................................................................
Page
1
2
3
5
7
11
1
Introduction
Shortly after the September 11th terrorist attacks, Congress imposed significant new background checks
on the 1.5 million workers employed in the nation’s ports. After four years of implementation delays,
the Transportation Security Administration (TSA) process of screening for the Transportation Worker
Identification Credential (TWIC) began in earnest late in 2007.
By April 2009, all workers were required by TSA to have their TWIC cards to enter the ports and continue
working. Despite this hard and fast deadline, TSA has failed to issue TWIC cards for large numbers of
workers who filed timely applications. Indeed, thousands of workers, largely African American and Latino
men, have waited an average of seven months — unable to work and support their families in the midst of
a devastating recession — while their petitions for review languish at TSA.
While these and other TSA implementation issues have plagued the TWIC program, there have also been
some remarkable successes that speak to the critical importance of the worker protections that were built
into the legislation. Most importantly, the law established a special process allowing workers to keep their
jobs when they can demonstrate to TSA that they have been rehabilitated and do not pose a terrorism
security risk, even if they have a disqualifying felony offense. Similarly, the law allows workers to correct
the inaccurate information that is routinely generated by the FBI’s criminal background check system and
as part of immigration status determinations. Almost 100 percent of these TWIC challenges were decided
in favor of the workers by TSA. Therefore, these model worker protections provide a lifeline to continued
employment, especially for workers of color.
Many port workers have generations of experience in the industry, and all are committed to the safety
and security of the ports on which they rely for their livelihood. The TWIC program was adopted out of a
renewed concern about terrorism risks after 9/11, not because the nation’s port workers presented any
special cause for concern. Not unlike the once-thriving auto industry that helped produce a strong U.S.
middle class, port work is often the best ticket to a good job for many communities, as well as the engine
driving the local economy. Longshoremen, refinery workers, maritime workers, and port truck drivers,
including many whose stories are featured in this report, work hard to support their families and often earn
a living wage, especially where their jobs have been unionized. Thus, the TWIC is critical to the livelihood
of large numbers of hard-working families who will be left out in the cold in this economy without it.
This report documents both the failings and accomplishments of the TWIC program’s critical worker
protections. The findings are based primarily on data collected by the National Employment Law Project
(NELP) on hundreds of TWIC applicants NELP represented through the TWIC review process. No such data
has been produced by TSA. Thus, this is the first evaluation of the TWIC program’s procedures that were
created to protect the rights of workers and ensure the integrity of the TWIC security threat assessment.
2
The Basics of the TSA Port Worker Background Checks
The Maritime Transportation Security Act (MTSA) of 2002 mandates
that all workers who require unescorted access to “secure” areas
of the ports obtain a TWIC.1 Applicants for TWIC cards are subject to a
criminal background check using the FBI’s database, verification of their
immigration status, and other security checks, all conducted by TSA.
As required by the MTSA and TSA’s regulations, most felony
convictions dating back less than seven years from the date of
conviction or five years from release from incarceration, including
standard drug dealing, sex offenses and some assaults, are
disqualifying unless the individual successfully petitions TSA for a
“waiver” proving that he or she is not a terrorism security risk. In
addition to the waiver procedure, workers are entitled to “appeal”
TSA decisions when the agency’s negative determination is based on
inaccurate information.
From application to final approval, these are the major steps involved
in the TWIC process:
• Step 1 (Application): To begin the TWIC process, workers
enroll at a local processing facility operated by Lockheed
Martin, TSA’s contractor. Although not required by law, TSA
anticipated that the agency would produce a determination on
the application within 30 days.
• Step 2 (Initial Denial, Waiver & Appeal): Workers who are
found by TSA to have a potentially disqualifying record or an
immigration status issue receive an “Initial Determination of
Threat Assessment” (IDTA). If the record is accurate, within 60 days workers can seek a waiver of
the disqualifying offense by producing evidence of rehabilitation. If TSA’s records are inaccurate or
incomplete, within 60 days workers can appeal the case to clear up the record. By regulation, TSA
has 60 days to respond to the TWIC waiver and appeal petitions.
• Step 3 (Final Approval or Denial): When the workers are ultimately approved, they receive a notice
that the TWIC card is ready to be picked up and activated. If the worker’s waiver or appeal request
is denied, then he or she can appeal that determination further. If the individual did not challenge
the initial denial (IDTA) within 60 days, then TSA automatically denies the TWIC.
Despite the law’s requirement that only felony convictions are disqualifying, TSA issues interim denials
in all cases when the record on file with the FBI is an open arrest for a potentially disqualifying offense,
even if the arrest has been dismissed or otherwise disposed of by the local law enforcement authorities
or the courts.2 That is a serious concern given that 50 percent of the FBI’s records are incomplete and
out of date.3 The problem is that the state law enforcement authorities are very efficient at providing the
William Ericson,
Seattle
Longshoreman
Mr. Ericson, a longshoreman at
the Seattle port, applied for his
TWIC in January 2009. He did not
believe he would have any trouble
getting approved for his TWIC
as he had no convictions. He
received an initial denial letter in
April 2009 requesting information
on an open disposition for the
potentially disqualifying offense
of forgery, dating back to 2004.
Mr. Ericson was arrested for
this offense but charges were
never filed, and he was never
prosecuted. Mr. Ericson provided
TSA with documentation showing
that charges were never filed
nor had he been convicted, but
he was still waiting to hear back
from TSA as of July 2009. Mr.
Ericson has been out of work for
six months now because of this
open disposition from 2004, has
exhausted all his savings, and he
is expected to foreclose on his
home within the next two months.
3
FBI with the fingerprints necessary to generate an arrest record, but
they routinely fail to update those records to reflect the outcome of
the case. Thus, by issuing an IDTA based solely on an arrest without
first verifying the information, TSA is placing the entire burden on the
worker to navigate the system and produce the paperwork necessary
to verify that the case was, in fact, dismissed or otherwise did not
rise to the level of a disqualifying conviction.
TWIC enrollment began in October 2007, and rolled out on a
staggered basis throughout the nation’s ports, culminating in a final
compliance deadline of April 14, 2009. As of April 14th, every worker
is required to have a TWIC to enter the port and continue working.
While at least 1.25 million workers have thus far enrolled in the
program,4 thousands of longshore workers, port truck drivers, and
rail workers were still caught up in the screening process as of June
2009, waiting for their TWIC cards to be approved.
10,000 workers had lost their jobs while awaiting an initial decision
by TSA on their TWIC cards after the April 14th compliance deadline
passed.5 A month after the TWIC deadline, TSA indicated that 8,800
workers had not yet been approved for their TWIC, and that number
was reportedly reduced to 3,300 by June 2009. These figures do not
account for the roughly 7,000 additional workers whose appeal and
waiver petitions are still awaiting a decision by TSA.6
The TWIC Waiver and Appeal
Procedures Are the Lifeline to the Jobs
of Over 30,000 Port Workers, Especially
African Americans and Latinos
In conspicuous contrast to most other federal and state criminal
record screening laws, the MTSA waiver and appeal protections allow
port workers to make their case to TSA that their criminal record
should not disqualify them from employment and, if appropriate, that
the records themselves are inaccurate.
The TWIC program put these basic worker protections to the test
over these last two years, and they have proven their weight in gold.
Indeed, according to TSA, nearly 100 percent of waiver requests have been granted by TSA (totaling 2,000
thus far with 2,000 still pending).7 Thus, those workers with a disqualifying felony conviction were able to
prove to TSA’s satisfaction that they were not, in fact, a terrorism security risk.
William Truxton,
Philadelphia
Steamship Clerk
Mr. Truxton worked as a
steamship clerk on the
Philadelphia waterfront for twelve
years. He applied for his TWIC
in December 2008. He received
an initial denial four months later,
in April 2009. Upon receiving
this notice from TSA, Mr. Truxton
immediately submitted an appeal
showing that all charges were
dropped. He then continued to
wait for TSA to process his appeal
well into May, when he was finally
approved after obtaining legal
assistance. Mr. Truxton had been
out of work since December
2008, when the Philadelphia port
began requiring a TWIC for entry.
During the five-month period he
waited for TSA to process his
application, Mr. Truxton and his
family, including four children
and a baby granddaughter, lost
everything. They were forced to
sell their furniture, and their car
was repossessed. They survived
on the few dollars a day that Mr.
Truxton’s mother earned from
babysitting that she shared with
him and his family so that they
could buy food at the dollar store.
They eventually received an
eviction notice. Mr. Truxton was
incredulous that the FBI records
had not been updated to show
that the charges against him had
all been dismissed. He said, “I
went from having everything to
having nothing, it’s devastating. I
worked hard all my life to get to
where I was, where I had a house,
a car, my kids, and now everything
is being taken from me because of
government backlogs and missing
information.”
4
Absent these protections, workers of color would be disproportionately denied the TWIC, and thus their
livelihood as a port worker in communities where good-paying port jobs are often the best ticket to the
middle-class. According to data collected by NELP on almost 300 workers who filed criminal record
challenges with TSA, 54 percent of all workers who applied for a waiver were African American (Table 1).
In contrast, African-Americans make up just 14 percent of all port workers nationwide.8 Thus, they are four
times more likely to benefit from the TWIC waiver procedure compared to their share of the port population.
The high rates of initial denials in the African American community are mostly a function of the
unprecedented surge of drug arrests and convictions in communities of color since the “War on Drugs.”
Indeed, drug “trafficking” is the single largest category of crime of the more than one million felony
convictions handed down each year, representing over 20 percent of all felony cases.9 These drug
offenses also represented the majority of the 300 appeals and waivers NELP filed on behalf of TWIC
applicants. Thus, by broadly disqualifying anyone with a record of a felony drug sale, even low-level offenders,
the TWIC program has had a serious disparate impact on the African American community of port workers.10
Port workers of color were also the major beneficiaries of the TWIC appeal protections, when workers
challenge the accuracy and completeness of the FBI rap sheet. TSA has granted almost 100 percent of
all TWIC appeals (totaling 22,000, and more than 5,000 cases are still pending).11 NELP’s records indicate
that nearly 41 percent of the criminal record appeals were filed by African Americans, or three times their
share of the port population (Table 1). Significantly, Latinos represented 29 percent of the criminal record
appeals, or nearly twice their share of the port worker population.
5
The extraordinarily high rates of successful TWIC waivers and
appeals make a convincing case for why these protections are a
model that, if carried out effectively, could be replicated whenever
employment background checks are required by other federal or
state laws. These protections create a safety net for all workers,
while also reducing the disproportionate impact of background
checks on people of color.
However, TSA’s insufficient staffing and screening protocols have
resulted in significant delays in the processing of applications, appeals
and waivers. As described in more detail below, these fundamental
flaws in the administration of the TWIC program have seriously
undermined the effectiveness of the model MTSA worker protections.
Major TWIC Delays Leave Port Workers
Jobless, Especially Workers of Color, While
Appeals and Waivers Languish at TSA
At a time when workers and employers can ill-afford a disruption
in their work, the incomplete criminal records that plague the FBI’s
database and the routine errors in reviewing immigration status
determinations have generated major TWIC processing delays for
all workers, but especially people of color. These findings are based
on data collected from over 450 workers who were provided various
levels of TWIC assistance by NELP over the past two years.12
• Workers Left Jobless 69 Days During Lengthy TSA Delays:
On average, the workers who were left unemployed because
their port went into compliance before they were approved
waited 69 days as their TWIC applications, appeals or waivers
languished at TSA. As a result, more than 10,000 were
left unemployed without their TWIC card in the midst of a
devastating recession, causing severe economic and family
hardships of the sort detailed in the compelling worker stories
that accompany this report.
• Workers Wait Nearly Four Months for the Initial TWIC Decision: Although not required by law,
TSA has indicated that workers would receive their initial decision on the TWIC within 30 days.
However, on average, it has taken almost four months (112 days) for TSA to issue an initial denial.
• Workers Challenging Initial Denials Waited Seven Months for their TWIC: Not until the workers
receive the initial denial can they gather the necessary materials for a waiver or appeal and await
TSA’s final determination. Thus, the delay in processing initial applications has led to significant
Hector Arana,
Oakland
Truck Driver
Mr. Arana has worked as a port
truck driver for over 25 years
in Oakland. He is originally
from El Salvador. He applied
for his TWIC in December 2008
and was told by the Lockheed
Martin agent at the enrollment
center that he did not need to
collect his green card for TWIC
purposes. He then waited for
months without hearing anything
from TSA. After obtaining legal
assistance, he was advised that
foreign-born TWIC applicants are
often denied initially and have
to provide their immigration or
citizenship documents to TSA,
even though those documents
should have been collected
during enrollment. Mr. Arana
then submitted his green card
proving his lawful permanent
resident status to TSA on May
1, 2009. Mr. Arana has limited
English proficiency, and turned
to union organizers working with
port truck drivers for assistance
in understanding the initial denial
letter he finally received from TSA
after he submitted his appeal.
As of July 2009, Mr. Arana has
still not been approved for the
TWIC. He has been out of work
since the Oakland port went into
compliance on February 28, 2009,
and has not been able to keep up
with his rent and other bills with
the few hours of part-time driving
work he has been able to pick up
outside the port.
6
downstream delays in the adjudication process. As a result, it took an average of over seven
months (211 days) until the TWIC was approved for those workers who had a criminal record or
immigration/citizenship issue that triggered an initial denial by TSA (Table 2).
• Workers of Color Wait Longest for TSA Approval of their TWIC: There were serious racial
disparities in the delays associated with the TWIC application, appeal and waiver process. On
average, White applicants were approved for their TWIC within six months (180 days). That
compares with almost seven months (200 days) for African Americans and over eight months (243
days) for Latino port workers (Table 2). These delays for people of color may well be associated with
the lack of targeted outreach and education to these communities and the conspicuous absence of
translation and interpreter services.
• TSA Requests for Additional Information Compound Delays: In about 10 percent of the TWIC
appeal and waiver cases handled by NELP, TSA requested additional information after the petitions
were filed. Further exacerbating the delays, these requests for additional information were not made
on average until 80 days after the waivers and appeals were filed with TSA. This finding raises
serious questions about TSA’s attention to the appeals during the 80 days preceding the request for
additional information.
• One in Four Workers Receiving an Initial Denial Failed to Challenge the TSA Determination:
In total, TSA has thus far issued almost 54,000 initial denials (IDTAs). However, 25 percent of
these initial denials (13,148) never resulted in a waiver or appeal filed by the worker.13 Thus, the
workers’ IDTAs expired and they were officially denied the TWIC. Given that almost 100 percent
7
of workers who file appeals and waivers are successful, it is
likely that these 13,000 denials could have been reduced with
more targeted outreach about the waiver and appeal process
to those communities hardest hit by criminal records and
immigration issues.
• Prevalence of Immigration Issues Raises Special Cause
for Concern: While TSA has not reported data on immigration
appeals specifically, more than 40 percent of the cases filed by
NELP were related to immigration and citizenship background
checks. Due to the absence of language accommodations
made by TSA and Lockheed Martin (the contractor largely
responsible for TWIC outreach and enrollment), it is likely
that many of the workers who failed to take advantage of
their rights to challenge the initial determination had limited
English proficiency and were unable to effectively navigate
the TWIC process.
Recommendations for TWIC Reform
Over the last several years, as the TWIC program was being rolled
out, Congress and interested groups provided TSA with detailed input
and specific recommendations for reform of the TWIC application,
waiver and appeal process.14 Unfortunately, TSA missed the
opportunity to get many of these critical protections right when it
counted most these last two years, and thousands of workers are
paying the price today.
Now that the port deadlines have passed and over a million workers have been enrolled in the program,
TSA’s immediate priority should be to process the thousands of cases of workers who have been shut out
of their port jobs due to the serious delays in reviewing the TWIC applications, waivers and appeals. TSA
is now also in a position to ensure that those who have fallen through the cracks of the TWIC system find
their way back to their port jobs. In addition, fundamental reform of the TWIC program is still necessary to
serve those who continue to apply for the TWIC in order to start new jobs at the port, and all workers who
will be required to renew their TWIC cards in five years.
The following recommendations for legislative and agency reform of the TWIC program are intended to
address the key deficiencies that have been documented from the data collected for this report, and
ensure that the model worker protections are implemented to comply fully with the letter and spirit of the
federal law.
Johnny Johnson,
Baton Rouge
Refinery Worker
Mr. Johnson worked on the docks
in Baton Rouge for two years,
loading and unloading barges.
He applied for his TWIC card
and was denied by TSA months
later, based on a battery arrest for
which there was no disposition on
his FBI rap sheet. Mr. Johnson
promptly submitted an appeal to
TSA with a letter from the District
Attorney’s office that had declined
to file charges against him, but
then had to wait over two months
more for TSA to grant his appeal
and approve his TWIC card.
During that time, Mr. Johnson lost
his job because he was unable
to access the petroleum plant
where he worked without a TWIC
card. As he was waiting for TSA
to review his appeal, he remarked,
“Soon, I will lose everything I have
worked hard for if this doesn’t
get resolved. This is extremely
unfair, especially with the way the
economy is at this time. I have
nowhere to turn.”
8
AGENCY REFORM PRIORITIES
1. TSA Should Expedite Those Cases of Workers Shut Out of the Ports:
TSA’s first priority should be to process as expeditiously as possible those applications, waivers and
appeals filed by workers who are now unemployed because their port compliance deadline passed
before they were issued their TWIC. To do so, TSA should first move additional staff into positions
to process these pending applications, waivers and appeals.
Within 30 days, TSA should identify those cases that require additional necessary information,
and directly contact those individuals in writing and by phone to collect the material. Rather than
requiring these workers to mail in their documents, TSA should also make available a fax number
and email address to speed up the process. Especially important, TSA should immediately provide
all workers with the contact information of the adjudication staff assigned to their case, thus
allowing the individual to obtain updates on the case and quickly resolve any outstanding questions.
2. Before Issuing an Initial Denial, TSA Should Marshal Its Resources to Track Down Missing
Information that Produces Appeals: The federal law was clearly intended to only disqualify
workers who have been convicted of a felony, not those who have arrests that did not lead to
conviction or misdemeanor records. That fundamental protection is undermined by TSA’s practice
of issuing initial denials to all workers whose FBI rap sheet includes an arrest record or a conviction
that may not be a felony, thus placing the entire burden on the workers to locate and produce the
court records necessary to successfully navigate the appeal process.
To adhere to the law, TSA should prioritize old arrests where the agency is in a reasonable position
to track down the missing dispositions before issuing an initial denial, especially old drug crimes
and other offenses that routinely result in non-felony convictions. Similarly, TSA should develop
contacts with each state criminal history repository and investigate the offense levels of potentially
disqualifying criminal offenses before erroneously issuing an initial denial based on a misdemeanor.
3. TSA Should Adopt Strict Timeframes to Process Applications, Waivers and Appeals:
To prevent future delays that produce severe hardships on workers and their families, TSA should
issue regulations creating strict timeframes to process TWIC applications, appeals and waivers.
That includes producing an initial denial within 30 days, reviewing all appeals and waivers within 30
days to determine if additional documentation is required, and adjudicating all appeals and waivers
within 30 days. TSA should also publish data documenting the agency’s compliance with these new
timeliness standards governing each stage of the TWIC threat assessment process.
4. TSA Should Reopen the 13,000 Initial Denials that Never Produced an Appeal or Waiver
Petition: Without receiving any final notification from TSA, one in four workers who were issued an
initial denial were eventually denied the TWIC because they did not file an appeal or waiver
challenging the IDTA. Given the nearly 100 percent success rate of TWIC appeals and waivers, and
the disproportionate impact of denials on workers of color, TSA should immediately reopen these
cases, notify the applicants of their special status (in English and Spanish with a “tagline” in multiple
languages), and assign them priority to help the workers navigate the TWIC appeal and waiver process.
9
5. Lockheed Martin Should be Required to Train Its Enrollment
Staff to Properly Process Applications from Foreign-Born
Workers: Lockheed Martin, TSA’s contractor in charge of
the enrollment process, must effectively train its “trusted
agents” to accept the necessary immigration documents
during enrollment, and TSA must take more proactive steps to
ensure that the documents needed by foreign-born applicants
are brought to the enrollment center and sent to TSA. TSA
has denied TWICs to large numbers of foreign-born U.S.
citizens and other qualified workers due to poor outreach
and communication with applicants regarding these critical
citizenship and immigration documents, and the failure to
obtain necessary documents through the enrollment process.
6. TSA and Lockheed Martin Should Translate Vital
Documents and Provide Interpreter Services: Contrary to
civil rights laws requiring federal agencies to provide translation
and interpreter services,15 these critical services have not
been provided by TSA and Lockheed Martin. As a result,
large numbers of immigrant workers who already have a hard
time navigating the TWIC process are unfairly denied access
to the TWIC and their livelihood as port workers. Of special
significance, the initial denial letters, informing the workers of
their appeal and waiver rights, should be translated into Spanish
and other languages spoken by large numbers of port workers.
7. TSA Should Immediately Publish Data Evaluating the TWIC Process:
TSA should immediately publish all available data evaluating the operation of the TWIC application,
waiver and appeal process (including information on processing delays, the number of workers still
waiting for their TWIC after their port compliance dates passed, the numbers of initial denials broken
down by disqualifying offenses, the number of appeals that are immigration related, and the success
rates of appeals and waivers). Based on the demographic data now produced on the FBI rap
sheets and provided during the enrollment process, TSA should also report on the race and ethnicity
of TWIC applicants to evaluate the impact of the TWIC criteria and procedures on people of color.
8. TSA Should Prepare for the Five-Year Renewal of the TWIC to Avoid Needless Denials:
When the time comes for all the port workers to renew their TWIC cards in the next five years, TSA
should take steps to avoid needless denials by streamlining the TWIC process. Specifically, TSA
should only produce initial denials in those cases where a disqualifying offense has occurred in the
last five years. TSA should also automate their records to ensure that those workers who renew
their TWICs are not denied for the same reasons already resolved during the initial enrollment.
Lyndon Ward,
Texas
Longshoreman
Mr. Ward, a longshoreman from
Freeport, Texas, applied for his
TWIC in September 2008. He
received an initial denial letter
from TSA in October 2008,
based on a conviction for a
false vehicle certificate. He
immediately provided TSA with
court documents proving that this
was a misdemeanor offense. In
November 2008, TSA returned the
original court documents to him,
but did not rule on his appeal. Mr.
Ward grew increasingly worried
and stressed as the months wore
on and he still heard nothing from
TSA. Finally, after obtaining legal
assistance, TSA approved his
TWIC, just before his port went
into compliance in April 2009
– six months after he initially
applied, and five months after he
submitted an appeal regarding
this non-disqualifying offense.
10
LEGISLATIVE REFORM PRIORITIES
1. Enact Pending Legislation Creating Strict Deadlines to
Process the TWIC: As part of the TSA Reauthorization bill,
the House of Representatives passed legislation (H.R. 2200),
proposed by Chairman Bennie Thompson of the House
Homeland Security Committee and Chairwoman Loretta
Sanchez of the Subcommittee on Border, Maritime and Global
Counterterrorism, creating strict deadlines for TSA to process
the TWIC, including 30 days to issue an initial response and 30
days to issue the results of an appeal or waiver. The legislation,
which is still pending in the Senate, should be immediately
enacted into law, thus significantly reducing the TWIC delays.
2. Enact the Fairness and Accuracy in Employment
Background Checks Act: Congressman Bobby Scott, the
Chair of the House Subcommittee on Crime, Terrorism and
Homeland Security, has sponsored legislation with bipartisan
support (H.R. 7033) that requires the FBI to track down
and update the open arrests listed on rap sheets before
the information is released to employers and government
agencies, including TSA. If enacted into law, this bill will
significantly reduce the number of problem rap sheets resulting
in initial denials by TSA. It will thus cut down significantly on
the TWIC appeals filed by workers, while conserving valuable
time and resources that TSA can devote to waivers and other
priority activities.
3. Eliminate Drug Offenses from the List of TWIC Disqualifying
Crimes: Given the significant disparate impact on people of color resulting from drug offenses that
produce a significant percentage of all initial TWIC denials (drug offenses are associated with more
than half of all the NELP appeals and waivers), Congress should eliminate drug crimes from the list
of TWIC disqualifying offenses. Unlike many of the violent offenses and terrorism-related offenses
that constitute disqualifying crimes under the law, routine low-level drug transactions are not
probative of a terrorism security threat.
Hector Rivera,
Baltimore
Boilermaker
Mr. Rivera worked as a
boilermaker at the Baltimore
port, which went into compliance
for the TWIC on December 30,
2008. He applied for his TWIC in
November 2008. In January 2009,
he received an initial denial from
TSA based on a 1980 conviction
for “breach of peace.” Mr. Rivera
immediately provided TSA with
court documents proving that the
conviction was a misdemeanor,
not a disqualifying felony, but
did not hear back from TSA for
months and months, despite
repeated calls and requests for
updates. Mr. Rivera and his
family struggled to make their
mortgage and car payments, and
to otherwise support the family
during the months he was out
of work. After obtaining legal
assistance, Mr. Rivera was finally
approved in April 2009, almost
four months after he submitted his
appeal regarding this 28 year-old
non-disqualifying offense, and five
months after he initially applied.
11
Endnotes
1
46 U.S.C. Section 70105.
2
The sole exception to the rule that only convictions can result in disqualification for the TWIC involves those cases where there is,
in fact, an open arrest. Thus, the MTSA states that only those individuals whose cases are still open for a potentially disqualifying
offense (i.e., “Under want, warrant, or indictment”) can be denied the TWIC, not those workers whose cases have been dismissed or
otherwise disposed of by law enforcement or the courts. 46 U.S.C. Section 70105(c)(1)(C).
3 U.S. Attorney General, The Attorney General’s Report on Criminal History Background Checks (June 2006), at page 3 (available at
http://www.usdoj.gov/olp/ag_bgchecks_report.pdf).
4
Department of Homeland Security, TWIC Dashboard (dated June 18, 2009).
5
“Delegate Christensen Investigates Stalled Transportation Worker Identification Credential Applications,” U.S. Fed News (May 16, 2009).
6
These figures were reported at the monthly meetings of the “TWIC Stakeholder Communication Committee” held by TSA, Lockheed
Martin, and the U.S. Coast Guard (Meetings dated May 18, 2009, and June 16, 2009); Department of Homeland Security, TWIC
Dashboard (dated June 18, 2009).
7
According to the latest data released by TSA, about 27,000 workers have filed appeals with TSA and another 4,000 workers have
filed waiver requests. Although about 7,000 appeals and waivers are still pending, thus far only 241 notices have been issued by TSA
indicating that the workers were denied their waiver or appeal request. Thus, while data are not available separating out the success
rate of waivers versus appeals, even if all the cases denied were waivers, the success rate for waivers would be over 94 percent of all
the waivers requests thus far filed with TSA.
8
The racial breakdown of the population of workers seeking TWIC waivers and appeals is based on the TSA petitions filed by NELP
on behalf of 300 workers, which is a broadly geographic sample of mostly longshore workers and smaller percentage of truck drivers.
The racial breakdown of the U.S. ports is based on data provided by the Equal Employment Opportunity Commission’s EEO-1-2007
Aggregate Report on National Support Activities for Water Transportation NAICS (4882). The EEOC’s data do not report on port
companies that employ fewer than 100 employers. Thus, they exclude large numbers of truck drivers, often immigrant workers, who
routinely operate as “independent contractors.” Although the EEOC data provide the best available information on the racial profile
of the nation’s port workers, they may understate the ethnic diversity of port workers by failing to count many truck drivers. See,
e.g., East Bay Alliance for a Sustainable Economy, “Taking the Low Road: How Independent Contracting at the Port of Oakland
Endangers Public Heath, Truck Drivers, and Economic Growth” (September 2007).
9
U.S. Bureau of Justice Statistics, Felony Sentences in State Courts, 2002 (December 2004), Table 1.
10
While drug possession is not disqualifying, most other drug offenses are captured by the broad language of the statute, which
disqualifies anyone with a conviction for “distribution of, possession with intent to distribute, or importation of a controlled
substance.” 46 U.S.C. Section 70105(c)(1)(B)(vii).
11
See footnote 7.
12
NELP’s findings on the TWIC delays may indeed underestimate the severity of the problem because the workers were provided direct
representation by NELP to help navigate the TWIC system, which may have sped up TSA’s determination process.
13
Department of Homeland Security, TWIC Dashboard (dated June 18, 2009).
14
Testimony of Laura Moskowitz, National Employment Law Project, Before the House of Representatives, Committee on Homeland
Security, Subcommittee on Border, Maritime, and Global Counterterrorism (September 17, 2008); Testimony of Maurice Emsellem,
National Employment Law Project, Before the House of Representatives, Committee on Homeland Security, Subcommittee on
Border, Maritime, and Global Counterterrorism (October 31, 2007); Comments of the National Employment Law Project, Before the
Transportation Security Administration and the U.S. Coast Guard, On the Notice of Proposed Rulemaking on the Transportation
Worker Identification Credential (Docket Numbers TSA-2006-24191, USCG-2006-24196) (dated July 6, 2006).
15
Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency” (August 11, 2000); U.S.
Department of Justice, “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons,” 67 Fed. Reg. 41455 (June 18, 2002).