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Revenge of the Social Security Administration No-Match Letters

7 Aug

After a multi-year break, the Social Security Administration (SSA) is again mailing No-Match Letters to employers. In the past few months, these letters have been delivered to hundreds of thousands of employers, and additional letters are expected to be delivered to over 300,000 employers this fall. Now officially labeled Employer Corrections Requests, the No-Match Letters ask employers to provide corrected information on certain employees to the SSA within 60 days.

It should come as no surprise that the records of millions of U.S. workers might not be accurate. Pew Research estimates there are over 10.5 million undocumented immigrants in the United States, many of whom may lack the necessary documentation to work in this country but still pay taxes and contribute to Social Security.

Some employers don’t want to respond to these letters, fearing they may eventually discover an employee who presented false documents or who can’t legally work in the United States. One group of union and worker activists claims these letters are political scare tactics and has been encouraging employers to ignore them.

Regardless of political beliefs or humanitarian sympathies, simply ignoring No-Match Letters is a very bad idea for employers as ignoring these letters could come back to haunt them in the future.

A typical No-Match Letter might read:

“You reported X employee names and Social Security Numbers (SSN) on the Wage and Tax Statements (Forms W-2) for tax year 2018 that do not match our records. We need corrected information from you…”

The SSA states that the letters don’t imply that false information was intentionally provided and that the letters don’t address an employee’s work authorization or immigration status. The SSA also warns that employers shouldn’t take any adverse action against an employee simply because of a mismatch.

Despite these warnings, another government agency, Immigration and Customs Enforcement (ICE) takes the position that receiving a No-Match Letter puts an employer on notice of a potential issue and creates a duty to investigate. When ICE audits an employer’s Forms I-9, it frequently asks about No-Match Letters received and what actions were taken to look into discrepancies involving employee information. In some situations, failing to address the letters has resulted in ICE concluding an employer had “constructive knowledge” of an employee’s unauthorized employment, opening up that employer to severe civil and criminal liability.

As a result, the return of SSA No-Match Letters has significant implications in future Form I-9 enforcement actions.

Here are some basic procedures to follow if you receive a No-Match Letter (Employer Correction Notice):

  1. CREATE an online account with SSA’s Business Services Online (BSO) to identify the reported discrepancy;
  2. CONFIRM the reported discrepancy against the employee’s record;
  3. COMMUNICATE with the employee receipt of the letter and ask the employee to confirm his or her information;
  4. ADVISE the employee to contact SSA to correct and/or update his/her information; 
  5. SUBMIT corrections to the SSA.
  6. CONTACT an immigration attorney for further information, especially if the SSA corrections may have an impact on your Forms I-9.

A nuanced approach is essential as overzealous employers can run afoul of anti-discrimination laws. Don’t ever use the mere receipt of a No-Match Letter as a basis for firing, terminating, or suspending an employee. Recognize that a mismatch could be due to a typographical error, a name change, an administrative error, or some other reasonable issue.  

Carefully document the attempts to resolve the discrepancy. This can help protect against discrimination claims and avoid a future finding that the employer has constructive knowledge of an employee working without authorization. Ultimately, some mismatches end up being the result of identity theft or the use of a fraudulent Social Security card.

Consider reaching out to a knowledgeable immigration attorney to help you develop a standard procedure to address No-Match Letters and determine what appropriate actions to take when a discrepancy cannot be resolved.