Dustin J. O’Quinn
After nearly a four-year hiatus, in April 2011, the Social Security Administration (SSA) began mailing no-match letters to employers. There are many reasons for the SSA to generate a no-match letter: input errors by the SSA, reporting errors by an employer or employee, identity theft, errors in hyphenated or multiple last names, or an unreported name change.
Taking immediate adverse action against the affected employee could give rise to a cause of action under one of several antidiscrimination or immigration-related statutes. However, taking no action in response to the receipt of a no-match letter also presents risks. As the Immigration and Customs Enforcement agency (ICE) continues on its path to conducting more frequent Form I-9 audits across the country, failure to provide evidence of how an employer responded to receipt of a no-match letter could increase the likelihood of ICE bringing an enforcement action, either civil or criminal, against the employer. Steps employers should take when in receipt of a no-match letter follow.
1. Notify the affected employee of the no-match letter in writing.
2. Review the Form W-4, Form I-9, Social Security number verification system (SSNVS) record, and any other documents currently in the employer’s possession that may contain the employee’s SSN to ensure that the employee’s name and SSN are correctly shown on the documents.
3. If an error is discovered that was submitted to the SSA in the wage report, advise the SSA of any corrections.
4. If, however, the records reflect the name and SSN provided by the employee:
4a. Notify the employee that he or she should immediately contact the SSA to correct any problems with the employee’s SSA record. Give the employee a reasonable period of time to correct the issue.
4b. Regularly follow up with the employee to monitor progress in correcting any errors with the SSA record. Document all such follow-up efforts.
4.c Advise the affected employee that a refusal to provide any documentation or credible explanation of good-faith efforts to correct any problems with his or her SSN or SSA record by the deadline could be grounds for termination.
Although guidance from the SSA requires that employers provide employees with a “reasonable period of time” to resolve issues related to a no-match letter, currently there is no definition as to what constitutes a reasonable period of time. Providing employees with at least 120 days to correct the issue before taking any adverse action, would be a conservative time period.
4d. When and if the employee is able to provide a correct SSN, advise the SSA of any corrections.
In addition to refraining from taking immediate adverse action against the employee, employers should avoid the potentially actionable behavior below.
- Do not attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9;
- Do not follow different or inconsistent procedures for certain employees based on apparent or perceived national-origin or citizenship status;
- Do not require the affected employee to produce specific documents to address the non-match; and
- Do not ask the affected employee to provide a written report from the SSA or any other agency verifying the employee’s SSN.
Employers may not be able to avoid the issuance of a no-match letter. However, it is important to have in place good record keeping practices and policies addressing a no-math letter when it arrives.
At www.ssa.gov the SSA provides guidance on how to proceed after the issuance of a no-match letter and even provides a sample letter that employers may provide to employees.