The Social Security Administration announced recently that it has resumed sending employers no-match letters. The Social Security Administration stopped sending no-match letters to employers after litigation arose in 2007 and a federal court injunction was imposed. These letters are issued by SSA if an employee's name does not coincide to a valid Social Security number.
So what do employers do now? The letter itself says that employers do not have to respond to the letter. However, the new no-match letter states "We may give this information to the IRS for tax administration purposes or to the Department of Justice for investigating and prosecuting violations of the Social Security Act. Additionally, Immigrations and Customs Enforcement officials request copies of SSA no-match letters as a part of their Notice of Inspection for Form I-9 audits. The new no-match letter also states: "The letter does not imply that you or your employee intentionally provided incorrect information about the employee's name or SSN. It is not a basis in and of itself for you to take any adverse action against the employee, such as laying off, suspending, firing or discriminating against the individual."
- Don't ignore the no-match letter. Note the date the letter is received and document an action plan on how to proceed in a lawful yet non-discriminatory manner.
- Discuss the receipt of a no-match letter with your immigration attorney to develop strategies to balance the employers obligation to follow up on the no-match letter while treating their employees in a manner that does not run afoul of the anti-discrimination laws.
- Employers should not allow individual managers to make "on the spot" decisions to terminate the employee. Remember, errors can sometimes occur because of a typo or number mix-up.
- Direct the employee to the nearest SSA office with specific direction to resolve the matter within a reasonable period of time; Reasonable amount of time is 60-120 days.
- Employees who fail to provide alternate acceptable documentation of identity and work eligibility should be considered for termination, but check with your immigration attorney before terminating an employee.
Clients in construction, hotels, restaurants, landscaping and agriculture work in industries that have historically received large numbers of no-match letters. Call us if we can assist you in the proper completion and retention of your Forms I-9 before you experience notices from ICE. Also, if you are not using E-Verify or the Social Security Number Verification System, please re-consider implementing these proactive systems immediately.
There are a number of increased enforcement activities that employers need to be proactive in compliance to avoid large fines. In addition to ICE, the IRS is very active in the issue of independent contractor vs. full time employee, OSHA is aggressively enforcing workplace safety violations, and the Dept. of Labor has increased interest in exempt vs. nonexempt classifications of employees. The message is simple: Do it right, do it right the first time, and consistently follow the employment laws. It is a lot less expensive than ignoring the labor laws and facing huge fines from the government.