In early April, the Social Security Administration (SSA) issued a directive for the agency to resume sending no-match letters. Employers have already begun to receive these letters and are once again facing important decisions about how to respond.
Background and Recent History
The purpose of an SSA no-match letter is to notify the employer that an employee's Social Security Number, as provided by the employer on its W-2 form, does not match the SSA's Numident database and to seek assistance from the employer in clearing up the discrepancy. There are numerous innocent reasons why such a discrepancy might occur, such as an error in initially reporting the employee's Social Security information, a change in the employee's name, or the use of a compound name which was improperly entered. Of course, a mismatch might also be the result of the employee's fraud in the Form I-9 verification process.
The SSA no-match letter is not intended as a tool for immigration enforcement. As the SSA has consistently stated in its no-match letters, a mismatch does not mean that the employee has intentionally provided false information or make any statement about the employee's immigration status. Employers must not overreact to no-match letters by taking action that might be considered discriminatory on the basis of national origin or citizenship status. On the other hand, the federal immigration authorities (now ICE) have historically advised that an employer cannot simply ignore a no-match letter, particularly if there is other evidence that the employee lacks work authorization. When conducting an immigration audit, ICE routinely asks for any no-match letters received by the employer and examines the employer's response.
Because of these potential immigration-related consequences, SSA no-match letters have long been a source of confusion for employers. In 2007, the Department of Homeland Security issued a rule designed to give the employer a "safe harbor" in exchange for the employer taking a number of specific steps in response to a no-match letter. However, this "safe harbor" rule was challenged through litigation, never actually went into effect, and was rescinded in 2009. During this period, the SSA suspended its practice of sending no-match letters to employers. The recent directive, however, makes clear that the SSA is now back in the no-match letter business.
Responding to the No-Match Letter
It is important for employers to develop a sound strategy for responding to SSA no-match letters. While an employer's precise strategy will depend on its own distinct circumstances, there are some general guidelines that all employers should follow. First, employers should not simply ignore a no-match letter. Although the newest version of the letter states that the employer is not required to complete the information sought by the SSA, the failure of an employer to take any action to correct the mismatch discrepancy would almost certainly be viewed negatively by the immigration authorities. Second, it is critical that the employer be consistent in how it responds to no-match letters. Asking about no-match letters only from employees of a particular race or national origin is a definite no-no. Third, the employer should not take any action against an employee or seek re-verification of work authorization, simply because the employee is the subject of a no-match letter. Jumping to conclusions about the employee's work eligibility can open up the employer to claims of discrimination and document abuse.
The SSA provides some limited additional advice in the new no-match letter itself and in a FAQ recently posted on the SSA website. This advice is probably sound as far as it goes, although it stops short of addressing the trickier issues that often arise. Specifically, the SSA advises the employer to first compare the information provided in the no-match letter with the information in its employment records. If that information matches, the employer should then ask the employee for the name and Social Security Number exactly as it appears on his or her Social Security card. If the employer and the employee are unable to resolve the discrepancy through these steps, the SSA directs the employer to ask the employee to contact his or her local Social Security office to resolve the matter. The SSA FAQ states that the employee should be given a "reasonable" amount of time to rectify the mismatch situation and further notes that it may take two months or more to obtain a Social Security card. However, the SSA does not provide any guidance about what the employer should do if it discovers additional evidence suggesting that the employee lacks work authorization or if the employee fails to get the discrepancy cleared up within a "reasonable time."
This is where the issues can get murky. While the SSA has clearly stated that a no-match letter, in and of itself, does not indicate unlawful immigration status, the employer should not view this statement as insulating it against immigration-based liability. If, as part of the no-match response process, the employer discovers other information indicating that the employee may not be properly authorized to work, the employer must weigh the risk of terminating the employee against the risk of continuing to employ him. Unfortunately, these situations are often difficult to resolve. If the employee confesses to unlawful status, the employer has no alternative but to discharge the employee. But what if the employee presents additional conflicting information when asked about the mismatch? Or fails to return to the employer with an explanation after the being given a "reasonable" time to resolve the situation at the SSA office? Or repeatedly comes back to the employer, saying that he is working on the Social Security issue, but never seems to be able to get anything resolved?
With the return of the no-match letter, difficult issues like these are sure to begin popping up once again. Addressing them incorrectly can lead to serious consequences, such as civil penalties and potentially even criminal liability. For this reason, prudent employers will think through these issues in advance and devise a consistently-applied no-match strategy to give themselves optimal legal protection.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
