The letter from the Social Security Administration arrives and, on its face, it looks innocent enough. When you read its contents, however, your first reaction may be one of alarm. The Social Security Administration has determined that the names of several of your employees and the social security numbers they provided to you and which you in turn have provided on the employees’ forms W-2 do not match.
You know that you have procedures in place to secure required information to complete the required Employment Eligibility Verification Form (Form I-9) and to secure accurate social security information. What went wrong? Your first thought may be that the letter reflects a determination that the employee is an undocumented alien who has provided you with a fabricated social security number. Have you now done something to violate immigration laws? Should you fire the employees involved? What is the proper response?
What is This Letter Really All About?
The purpose of this article is to understand the significance of the “no-match” letter where it fits into the government’s employment regulatory framework and to recommend steps to deal with the so-called “no-match” letter appropriately.
First, it is important to understand what the “no-match” letter is and what it is not. Second, it is important not to react (or over-react) in such a way as to expose your company to legal liability.
As we know, the Social Security Administration is responsible for creating and maintaining a huge database of employee information which it utilizes to post all reported earnings to the accounts of the employees receiving Social Security credits. It has been reported that employers each year send the Social Security Administration millions of W-2 earning reports in which the combination of employee name and social security number do not match the Social Security database.
First started in 1993, the “no-match” letter program was initially applied to employers whose wage reports reflected mismatches for ten percent (10%) or more of its employees. Now, a single name/social security mismatch will result in a “no-match” letter. Of course, as a consequence, many more employers are required to deal with them and greater apprehension and confusion among those employers has arisen.
Adding to the apprehension, the Federal Bureau of Immigration and Customs Enforcement (“ICE”) in June of 2006 proposed regulations which would give it greater oversight of Social Security’s “no-match” letter program. The new regulations have not been adopted and, because of significant opposition, they may never be. But, if they are, they would require an employer to take certain steps which the ICE characterizes as “reasonable” and if the employer fails to do so and the employee is found to be an unauthorized worker, the ICE may conclude that the employer had “constructive knowledge” of that fact and, thus, has violated immigration laws.
The “no-match” letter is not a notice that immigration laws have been violated and it is not an immigration law enforcement tool. The reasons for the mismatch are numerous. It could simply be the product of a clerical error by the employer or by the Social Security Administration itself, it could be a product of a name change resulting from marriage or divorce not having been reported; or the employee could have submitted an incomplete name or transposed a number or it could mean that the social security number submitted was, in fact, bogus. Thus, the “no-match” letter seeks to secure corrected information needed to keep the database up-to-date and accurate. The standard form “no-match” letter itself states that the letter is “not a basis, in and of itself” for taking “any adverse action” against the employee. . . whose name appears on the list. . . . This letter makes no statement about the employee’s immigration status.”
On the other hand, because the Immigration and Nationality Act makes it unlawful to continue to employ a person knowing that he or she is or has become an unauthorized worker the “no-match” letter cannot be dismissed. Proof of actual knowledge of the employee’s unauthorized status is not required to trigger employer penalties. Constructive knowledge (i.e., employee or should have known) is enough.
So What am I Supposed To Do?
The tension between the prohibition against employing unauthorized workers and the prohibition against discrimination often leaves employers in a very understandable quandary. Adhering to the following guidelines should, however, help to ensure that no violation of either prohibition will be found.
- Don’t Over-React. Do not terminate the subject employee on the basis of the “no-match” letter without additional information. To do so may expose your company to liability for unlawful discrimination. Termination for employment eligibility violations is permissible only if you have actual or constructive knowledge that the employee is unauthorized to work in the United States. The “no-match” letter without additional information does not constitute constructive knowledge.
- Investigate. Verify the accuracy of your own information. Make sure the employee’s name is spelled correctly and that the number used on the employee’s W-2 conforms to the information provided. If there is no error, ask the employee to check his or her social security card and records and inform you of any discrepancies between what appears on the card and the information reflected in your records. If the basis for the mismatch letter cannot be found, suggest that the employee go to the local office of the Social Security Administration to resolve the discrepancy. If necessary, give the employee paid or unpaid time off to investigate and correct the errors. Tell the employee to keep you informed of his or her efforts and progress.
- Do not Discriminate. Perhaps it goes without saying, but all employees who are the subject of the “no-match” letters should be treated similarly, without regard to race, national origin or citizenship requirements.
- Terminate, if Necessary. If, in the course of your investigation, the employee admits that he or she is not authorized to work in the United States, you should terminate their employment immediately. Similarly, if you learn additional information which gives you actual or constructive knowledge, that the employee is unauthorized, you must terminate his or her employment. Frequently, an employee confronted with the existence of a “no-match” letter which they know cannot be corrected will abandon their position
- Educate. Issue a general notice to all employees advising them that in order to ensure proper crediting of wages to their Social Security accounts they should compare their social security numbers on their wage statements against their social security cards to make sure they match. You may also want to invite a representative of an immigrant’s rights organization who is familiar with the no-match letter program to come to your business to brief your employees about the program and their compliance obligations.
- Follow-Up. Of course, if the reason for the mismatch is discovered, you should report this promptly to the Social Security Administration. If necessary, the employee’s I-9 should also be corrected. If the employee verifies that you have the correct name and social security number and can offer no other explanation for the discrepancy; you should promptly report that fact to the Social Security Administration. Invite the SSA to contact you if they want you to do anything else. Finally, if the employee is no longer employed, whether as a result of involuntary termination or job abandonment, report that fact to the Social Security Administration as well.
- Get Help. Finally, if you are unable to determine the appropriate course of action given the unique circumstances of a particular situation, contact legal counsel for additional guidance.