WORKPLACE LAW -
“No Match” Letters
Question:
I received a letter from the U.S. Social Security Administration (SSA) stating that the Social Security numbers for two of my employees do not match their respective names. What should I do?
Answer:
You cannot automatically assume that your employees are not authorized to work in the United States. However, a “no match” letter should be taken seriously as it may indicate an employee’s ineligibility to work in the U.S.
The U.S. Department of Homeland Security (DHS) issued regulations that provide guidance on how an employer can properly respond to a “no match” letter in order to have a “safe harbor” from allegations the employer had knowledge that an employee was unauthorized to work. Although the DHS final regulations never took effect, the DHS claims that an employer’s failure to adequately follow-up on a “no match” letter can constitute evidence of or contribute to an employer’s knowledge of an employee’s unauthorized status. Employers are therefore advised to take the following steps when they receive a “no match” letter:
- Check your records to see if the documents submitted to the government contained any typographical or other errors, and submit corrected materials, such as a corrected W-2 form, if applicable.
- If no errors are found in your records, notify the employee in writing that his or her Social Security Number does not match SSA records and instruct the employee to contact the SSA to resolve the issue within 90 days.
- Check back with the employee at the end of the time period. If the employee can show the matter has been, or is being, resolved, document this resolution. If the matter has not been resolved and/or there has been no progress, you may need to suspend or discharge the employee, depending on the facts of the case.
The “no-match” letters are triggered when the names or Social Security numbers listed on an employee’s Form W-2 do not match SSA’s records. The purpose of the letter is to notify workers and employers of the discrepancy and to alert workers that they are not receiving proper credit for their earnings, which can affect future retirement or disability benefits. Because a mismatch may be caused by many reasons, such as transcription errors or an unreported name change, employers should not assume the mismatch is the result of an employee’s wrongdoing nor take an immediate adverse employment action.
Employers must fill out an I-9 for each worker they hire in which they verify an employee’s eligibility to work in this country. The employee must present one or more specified identification documents to the employer as evidence of employment eligibility. Under the Immigration Reform and Control Act of 1986, it is illegal for employers to knowingly hire or retain workers who are unauthorized aliens. The DHS is charged with enforcement of employer compliance with federal immigration laws, and the Immigration and Customs Enforcement (ICE) agency aggressively investigates employers that hire unauthorized employees.
For example, in May 2008, ICE agents executed a federal search warrant at a San Diego-area restaurant, arrested 18 undocumented workers, and seized employee and payroll records. The restaurant, its owner and manager were subsequently charged in a 16-felony count indictment that they knowingly hired undocumented workers. According to the indictment, the restaurant’s owner and manager certified on I-9s that the employee documents they examined appeared to be genuine. After they received SSA “no match” letters, they allegedly conspired to pay the undocumented employees in cash until the workers produced a new set of employment documents with different Social Security numbers. Potential penalties against the restaurant are in excess of $500,000 for each violation, while those for the owner and manager exceed $250,000 per violation as well as up to 30 months each prison time if convicted. Additionally, the government is seeking forfeiture of the restaurant.
Employers are advised to establish an I-9 compliance policy that includes the proper and timely completion and retention of I-9s for all employees; a tickler system for I-9s that require re-verification; I-9 training for company representatives involved in the company’s recruitment, orientation and hiring processes; and regularly schedule in-house I-9 audits. While employers cannot always verify whether documents used for employment authorization are authentic, self-audits establish good-faith compliance and put the company in a better position if investigated by ICE.
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