Employers: SSN No-Match Letters are Back

Many employers still recall opening a letter from the Social Security Administration (SSA) informing them that the name or Social Security number (SSN) reported on a recent wage report does not match a name or SSN in the SSA’s records. At times the letter listed numerous individuals with a mismatch. The question for employers was what to do and when to do it. The answers were not always clear.

They’re Back

For the past seven (7) years, no mismatch letters have been issued by the SSA. Unfortunately, they are soon to again be in the mail to many employers. In July 2018, the SSA notified employers that it was resuming the practice effective January 2019. Stopping the issuance of those letters was one of the areas the Trump administration cited as an example of the government failing to enforce the immigration laws. Reviving the policy of issuing such letters goes hand in hand with the dramatically increased use of Notices of Inspection (NOIs), otherwise known as I-9 audits, that we have seen in recent months. They are both, along with renewed workplace raids by Immigration and Customs Enforcement (ICE), integral parts of the administration’s all-encompassing focus on illegal immigration.

What Can Be Done If You Get a Letter

So, the question of what to do and when upon receiving a no match letter will again arise very soon. The guidance on what an employer must do is provided in the SSA’s Frequently Asked Questions about no-match letters. What must be done is relatively clear. The first step is to try “to confirm that a reporting or input error is not the cause of a no-match”. To do this the employer, is conjunction with the employee, should try to confirm that the name and SSN submitted correctly reflect the employee’s name and SSN. This can be accomplished by a brief meeting with the employee to review the relevant documents. If no error in the information is apparent, the employer should refer the employee to the local SSA office to attempt to resolve the no-match. The step of attempting to confirm apparent errors in name or SSN should occur relatively quickly after receipt of a no-match letter. While no specific time frame is mandated, an employer wants to act reasonably to such a government notice in case questions arise later regarding the employer’s conduct in and whether it employed someone that was not authorized to work.

The question of how long an employer should wait for final resolution of the no-match notice before taking action is more difficult. As the SSA guidance notes, there are no regulations that set out any specific time frame or define what would be a reasonable period of time to address and correct information or otherwise resolve the mismatch. They do note that in the E-Verify context, SSA can provide a continuance of 120 days for a tentative non-confirmation of work authorization. That would therefore seem to be the outside limit that might be considered reasonable. When no-match letters were arriving on almost a monthly basis many employers used a ninety (90) day rule of thumb as a reasonable period for lack of more definitive guidance. There are no reported cases where that was deemed to be an unreasonably long period.

What Causes an SSN Mismatch

One of the more frequently asked questions involving such letters is what causes a mismatch. There are a variety of possible causes, including simple reporting errors by an employer or employee. The error may merely be transposed numbers, missing numbers, name errors or typing errors. In some cases the mismatch results from input errors by SSA staff. It may also be the result of serious misconduct such as identity theft or fraud. A name change by the employee, usually because the employee recently married, is usually a common cause of a no match letter. Employees that have hyphenated last names also seem to receive no match letters more frequently. Ultimately, the discrepancy must be resolved.

If it is a simple incorrect recording error the employer can correct its records and submit Form W-2c, a Corrected Wage and Tax Statement. Sometimes employees merely quit or fail to respond when confronted about the mismatch by the employer. On some rare occasions an employee will admit to being unauthorized to work. The only reasonable employer response at that point is immediate termination. And in some cases an employee may claim that after checking with SSA, they are unable to explain the discrepancy. Here an employer can either risk continuing to employ the individual or terminate employment and hope that no viable legal complaint is raised. Neither option is the ideal response and probably warrants consulting with counsel or other professionals on immigration matters before taking action.

A No Match Letter is Not Evidence that an Employee Lacks Work Authorization

It is clear that a no-match letter, in and of itself, cannot constitute “constructive knowledge” of lack of work authorization. Only the Department of Homeland Security (DHS) can make such a legal conclusion, which usually involves a totality of the circumstances review. If an employer were to rely upon the no-match letter as a basis for taking adverse action against the employee at issue, it could violate the anti-discrimination rules of the Immigration and Nationality Act.

Can You Reduce the Chance of Getting a Letter

The SSA guidance does suggest at least one proactive step that employers might want to take to try to minimize receiving a no-match letter. It would involve the employer using the Social Security Number Verification Service (SSNVS). This is a free online service available to employers to verify the name and SSNs of employees using SSA file records. There is also available to employers an automated telephone service, Telephone Number Employer Verification (TNEV) that is similar to the SSNVS. These two verification services can only be used for confirming wage reporting issues, not to verify work authorization. Such improper use could be deemed illegal. Use of either of these information confirmation services would permit the employer to correct any obvious errors and thus reduce the likelihood of their wage reports being flagged.

Conclusion

If you receive a no-match letter in 2019 or thereafter, it is best to be as responsive as possible since you will be under the scrutiny of two agencies of the federal government, SSA and IRS. Neither is fun to deal with!    

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Richard D. Alaniz is a partner at Alaniz Law & Associates, a labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over forty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive Rick’s monthly articles, can be addressed to Rick at (281) 833-2200 or ralaniz@alaniz-law.com.