Effective April 6, 2011, the Social Security Administration has resumed sending “no-match” letters advising employers when an employee is using a social security number that does not coincide with SSA records.
Employers have not seen “no-match” letters since 2008 when the Department of Homeland Security’s Safe-Harbor rules were challenged and an injunction was issued keeping the rules from being enforced by the U.S. Government. However, as stated above, the Social Security Administration (“SSA”) has indicated that, in 2011, it will begin sending “no-match” letters once again to employers. The difference in the 2011 “no-match” letters: they will not contain language alluding to the Department of Homeland Security rules and cautioning that a failure to act upon such letter could be construed as “constructive knowledge” of employment of illegal workers. The other difference in the 2011 “no-match” letters is an employer will receive one letter for each social security number with a discrepancy rather than one letter listing all of the social security number issues. The SSA has indicated this new policy is to protect the privacy of social security numbers and holders.
What do you do if you get a “no-match” letter?
What should an employer do if it receives a “no-match” letter from the SSA? Following SSA guidance, the first step an employer should take is a quick check of their internal records to ensure that when the social security number was submitted, numbers were not transposed or mistyped. If the number was correctly submitted, an employer should then meet with the employee and advise the employee of the discrepancy in their system and the SSA records. The employer should ask the employee to confirm that their name and social security number were properly provided to and submitted to the employer at the time of hire and employment. If the name and number were correctly provided to the employer, the employer should advise the employee to contact the local SSA office to have the discrepancy fixed. The SSA guidance indicates that an employer should provide the employee a “reasonable period of time” to fix the discrepancy but does not provide a definitive time period. Other independent SSA guidance on replacement social security cards provides that an individual should expect the replacement process to take two months or more to complete. The Safe-Harbor rules provided a 90-day time period to resolve the discrepancy and, Verrill Dana, has generally recommended that employers utilize a 90-120 day time period as “reasonable.”
What if the employee cannot resolve the discrepancy? The SSA field guidance is of little help with regard to this question. For employees that cannot resolve the discrepancy because they are no longer employed with the company, SSA advised that the employer document its efforts to contact the former employee and other efforts made to obtain the correct information, and maintain this documentation within the individual’s file for a four-year period. The SSA field guidance provides similar information with regard to current employees that cannot resolve the discrepancy. However, this leaves open the issue of whether the inability to correct the social security record impacts the employee’s I-9 record. For instance, what if the employee provided the social security card as one of the documents for completion of the I-9? Can the employer continue to rely on this document for I-9 purposes when the record remains uncorrected? And what of the guidance provided by the Office of Special Counsel that states an employer should not terminate a worker based solely on the receipt of a no-match letter nor should the employer attempt to re-verify the employee’s work authorization based solely on the receipt of a no-match letter?
It is clear that when an employer receives a “no-match” letter from the SSA, it must conduct some activity to clear the discrepancy. It is also clear that whatever activity is conducted must be conducted in a non-discriminatory, fair, and consistent manner. Further, it is clear that the employer must provide the employee with a “reasonable” period of time in which to correct any discrepancy – from most accounts, this should be no less than 90 days and, perhaps, as long as 120 days. But what is unclear, is the impact on the employer when the individual cannot clear the discrepancy. An employer cannot take adverse action against the employee based only on this discrepancy nor can the employer require the employee to re-verify her work authorization based only on this discrepancy. However, this all leaves open the question of whether, in the course of an I-9 audit by the Immigration and Customs Enforcement, the employer will be considered to have constructive knowledge of employing such an individual even though the employer knew there was a discrepancy with regard to the employee’s social security number. As such, employers that receive “no-match” letters from the SSA should contact counsel to develop consistent strategies that allow them to deal with the morass of issues raised by the receipt of this simple, one-page letter.