July 17, 2019

Employer Catch-22: Social Security No-Match Letters

After a multi-year hiatus, the Social Security Administration has resumed sending employers “no-match” letters, with one difference: The letters do not include a list of employee names and mis-matched SS numbers. Instead, the employer is directed to an online database which contains the no-match names and numbers.

The Department of Homeland Security offers no public guidance for steps that employers should take when an employee is listed by SSA as a no-match. Nonetheless, DHS and its sub-agency ICE take the position that receipt of a no-match letter creates an affirmative duty to investigate the reason for the discrepancy. DHS maintains that under its “totality of the circumstances” test, a “bad” SS number may support an ICE/DHS claim that an employer has knowledge or “constructive knowledge” of an employee’s unauthorized work status.

Importantly, the SSA letter itself states that employers should not take any steps to terminate employment based solely on the alleged no-match. The SSA letter does not mean that an employee is not authorized for employment. An employer cannot use the letter as a basis to take adverse action such as suspending, firing or discriminating against an employee solely because his or her Social Security number or name does not match SSA records. The purpose of the SSA no-match letter is to make sure that the employee is getting proper credit for wages and SSA benefits. SSA is not an enforcement agency.

How should an employer handle a no-match letter from SSA?

First, the employer should check its internal records for transposed numbers, misspelled names, or clerical errors.

Second, if no error is found, the employer should contact the employee (in writing or, if orally, documenting the contact in a written memo) to confirm that the number the employer has for the employee is the correct SS number.

Third, if the employee confirms the number, the employer should ask the employee about any name change through marriage or otherwise, or use of a hyphenated name that may not match the name on the SS card.

Fourth, if the reason for the discrepancy is not found, the employee should be told to contact SSA to get the matter straightened out. As with the other steps, this should be documented in writing.

Fifth, after a “reasonable period” of time, if the employer has not heard back from the employee, the employer should contact the employee regarding the status of the SSA inquiry.

The employer must be careful not to wrongfully terminate or discriminate against an employee. On the other hand, the employer must also take action sufficient to stave off a potential ICE/DHS lawsuit for knowingly employing an undocumented worker. What is a “reasonable” period of time? There is no clear guidance, but 120 days is probably reasonable based upon what courts have said in similar circumstances in the past.

What should the employer do if after all steps are taken the discrepancy remains? Again, there is no clear guidance. If the employee disappears, or admits that he or she does not have a valid SS number and is not legally authorized to work, those are sufficient grounds for termination. Some employers choose to stay the course after taking steps one through five, and wait for more definitive guidance from DHS or ICE or USCIS concerning what additional steps to take. After 120 days, however, subject to careful review of each employee’s particular facts and circumstances, failure to provide an explanation as to why the matter cannot be resolved may give rise to an unauthorized employment claim against the employer.

The contents of this post do not constitute legal advice. Contact our office if you need assistance handling a no-match letter or if you have questions about I-9 employment authorization verification or related employer sanctions issues.

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