From 2009 until recently, the Social Security Administration did not issue “no match letters” — the notices from SSA that alert an employer to a mismatch between an employee’s name and social security number. The SSA halted these letters due to substantial controversy — and litigation — that challenged rules promulgated by the Department of Homeland Security mandating how employers had to respond. Now that the SSA has resumed sending these letters, you need to understand what responses are and are not appropriate.
A mismatch between an employee’s name and SSN might be due to a simple mistake (a misspelled name, oversight in registering a name change with the SSA) or illegality (an undocumented worker using a fraudulent SSN). Under the SSA’s new procedures, employers will get a no-match letter when the individual can’t be reached directly about the discrepancy. The letter states, “This letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual.” The letter warns that taking action against the employee might violate the law. However, failing to take action in response to the letter or taking the wrong action can subject an employer to criminal investigation and prosecution, such as for knowingly employing or “harboring” unauthorized workers if the worker is in the country illegally.
A guidance document from the U.S. Department of Justice’s Office of Special Counsel (OSC) offers these recommendations for employers in responding to these letters:
- Check company records to see if there’s a clerical error.
- Ask the employee to verify the exact name and SSN number on his/her card. Although the OSC guidance does not so state, the no-match letter specifies that, while an employer should ask the employee for this information, “the employee is not required to show you the Social Security card. However, seeing this card will help ensure that the records are correct.”
- If the mismatch remains, have the employee contact the SSA to resolve the matter (and give them reasonable time to do so). An OSC frequently asked questions document notes that, although no statute defines “a reasonable period of time” SSA discrepancies can take up to 120 days to resolve.
- Meet with the employee periodically to learn and document the status of their efforts to address or resolve the mismatch.
- Follow the same procedure with all employees regardless of citizenship status or national origin.
- Review any document the employee offers that demonstrates resolution of the mismatch and submit any corrections to the SSA.
The OSC guidance document also makes these recommendations about what an employer should not do:
- Do not assume a mismatch conveys information about an employee’s immigration status or work eligibility.
- Do not use the letter as the sole basis to terminate, suspend, or take other adverse action.
- Do not attempt to re-verify the employee’s employment eligibility immediately by requesting the completion of a new I-9 based solely on the letter.
- Do not require that employees present specific I-9 documents to address a no-match.
- Do not require employees to provide a written verification report from the SSA as it might not always be obtainable.
Neither the SSA nor the OSC provides any guidance on what to do if the employee is unable to resolve the mismatch. However, consistency in the way you address these issues is critical to avoid violations of anti-discrimination laws (including discrimination based on national origin or immigration status), and you must make decisions about whether to keep employing individuals who can’t resolve the matter. Otherwise, you might face a charge of “constructive knowledge” that you employed undocumented workers. We’d recommend that you work with counsel to develop policies that address these matters and resolve individual “no-match” cases.
Provided courtesy of the Worklaw Network firm Shawe Rosenthal.