SOCIAL SECURITY NO MATCH LETTERS... THEY’RE BACK!

The Social Security Administration (SSA) has once again started sending the troublesome “no-match” letters that advised employers that their workers’ Social Security numbers do not coincide with SSA records.

The new no-match letters differ from the previous policy which listed multiple employees on one letter (asking for updated information) since the new letters list only one employee. No match letters are sent for many reasons such as typographical errors, name changes, and other incomplete information. They do not imply that the employee intentionally provided incorrect information and, is not, in and of itself, a reason for the employer to take any adverse action against the employee as a result of receipt of the letter.

What Should Employers Do?

  • Upon receipt of a letter, employers should check their records to determine if the information matches the documentation submitted and also ask the employee to check their own records to ensure that they have accurately reported all information.
  • If the worker and the employer are unable to resolve the issue, management should instruct the employee to contact a local SSA office and it should provide the employee with a “reasonable amount of time” to resolve the discrepancy. We recommend that to be safe, employees should be afforded up to 120 days.

Clearly, an employer’s conduct, or failure to act, upon receipt of a no-match letter can be troublesome. Conduct definitely to avoid involves:

  • Telling the employee to get a new Social Security card (that may be equally fraudulent) or that is legitimate but belongs to another person.
  • Paying the employee in cash in order to avoid use of the SSA number listed in the no match letter.

Special Advice

1.  As noted above, an employer should not terminate a worker based only on the receipt of a no-match letter;

2.  An employer should not attempt to re-verify work authorization by requesting the completion of a new I-9 form.

Conclusion

In the present environment of aggressive enforcement against employers in connection with the hiring of immigrants, a lackadaisical attitude on receipt of no match letters can lead to liability particularly in light of the fact that many criminal prosecutions against employers involve Social Security no match letters.

Employers that receive no match letters should work with counsel to develop strategies in order to comply with their obligations under immigration law while, at the same time, avoiding treating their employees in a discriminatory or improper manner.

This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.