You just got an “SSN no-match” notice – an employee’s name does not match his or her Social Security number. Now what? Is it grounds for termination? Should you give the employee a deadline for resolving the discrepancy? Should you ask the employee to submit new documents to re-verify his or her employment eligibility?
First, read up on the topic at the Justice Department’s website. Here are some basic “dos and don’ts” they offer:
- Recognize that SSN no-matches can result from simple administrative errors.
- Check the reported no-match information against your personnel records.
- Inform the employee of the no-match notice.
- Ask the employee to confirm that his or her name and SSN are correctly reflected in the personnel records.
- Advise the employee to contact the Social Security Administration (SSA) to correct and/or update his or her SSA records.
- Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
- Follow the same procedures for all employees regardless of citizenship status or national origin.
- Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
- Submit any employer or employee corrections to the SSA.
- Assume the SSN no-match conveys information regarding the employee’s immigration status or actual work authorization.
- Use the receipt of a no-match notice alone as a basis to terminate, suspend, or take other adverse action against the employee.
- Attempt to immediately reverify the employee’s employment eligibility by asking the employee to complete a new Form I-9.
- Follow different procedures for different classes of employees based on national origin or citizenship status.
- Require the employee to produce specific documents to address the no-match.
- Ask the employee to provide a written report of SSA verification.
Frequently Asked Questions
The following FAQs, also provided by the Department of Justice, help clarify exactly what an employer should and should not do in response to an SSN no-match notice:
Q: What is an SSA no-match letter?
A: It is a written notice the Social Security Administration sends to an employer, usually in response to an employee wage report, advising that the name or Social Security number does not “match” a name or SSN combination reflected in the SSA’s records. The letter cautions employers against taking any adverse employment action against the employee based solely on receipt of the letter, and explicitly states that the letter makes no statement about the referenced employee’s immigration status. Rather, the letter simply reports an apparent error in either the employer’s records or SSA’s records, and seeks the employer’s and, if necessary, the employee’s assistance in conforming those records. Click here for more information on the SSA’s No-Match letter program.
Q: If an employee's name and SSN don't match SSA's records, doesn't that mean the employee is not authorized to work?
A: No. There are many possible reasons for a no-match letter, many of which have nothing to do with an individual’s immigration status or work authorization. An employer should not assume that the employee is not authorized to work, and should not take adverse action against the employee. Such action could subject the employer to liability under the antidiscrimination provision of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1324b.
Q: What might cause a no-match?
A: There are many reasons for a no-match notice, including but not limited to: an unreported name change due to marriage, divorce, or naturalization; input errors by SSA staff; reporting errors by an employer or employee; identity theft; errors in reporting proper culturally based hyphenated or multiple surnames; and fraud.
Q: What action should an employer take upon receipt of an SSA no-match letter or other notice of a no-match?
A: To confirm that a reporting or input error is not the cause of a no-match, an employer, with the assistance of the referenced employee, should confirm that the reported name and SSN are correct. If no error is discovered, the employer should then advise the employee to contact the local SSA office to address the reported no-match. An employer should not use the no-match letter or other no-match notice by itself as the reason for taking any adverse employment action against the referenced employee. In addition, employers should not use the receipt of a no-match letter or other no-match notice (or the fact that an employee raises any objection to the employer’s no-match response procedures) as a basis to either retaliate against the employee or otherwise subject the employee to heightened scrutiny. Doing so may violate the anti-discrimination provision of the INA or other state or federal equal employment opportunity or labor laws. While not required to do so, an employer may schedule (and document) periodic meetings or other communications with the employee during the resolution period to keep abreast of the employee’s efforts to resolve the no-match, and to determine whether the employee needs more time to resolve the no-match.
Q: Do no-match letters or other no-match notices create “constructive knowledge” that an employee is not authorized to work?
A: The mere receipt of a no-match letter or other no-match notice does not, standing alone, constitute “constructive knowledge” on the part of an employer that the referenced employee is not work-authorized. Only the Department of Homeland Security (DHS) is legally authorized to conclusively determine an individual’s authorization to work. An employer should give a referenced employee a reasonable period of time to address and correct information contained in a no-match letter or other no-match notice.
Q: What is a “reasonable period of time”?
A: There are no federal statutes or regulations that define a “reasonable period of time” in connection with the resolution of a no-match notice. As a practical matter, a “reasonable period of time” depends on the totality of the circumstances. Of note, in the E-Verify context SSA has the ability to put a tentative nonconfirmation into continuance for up to 120 days. This recognizes that it can sometimes take that long to resolve a discrepancy in SSA’s database.
Q: What is the relationship between E-Verify Notices of Tentative Nonconfirmation (TNC) and SSA No-Match Letters?
A: Both rely upon SSA databases. However, DHS’s E-Verify program is specifically designed to verify an employee’s work authorization and provides workers with an opportunity to correct the SSA databases before making that determination. Click here for more information on the E-Verify program. In contrast reports simply indicating that an employee’s name and SSN do not match SSA’s records do not make any statement about an employee’s work authorization.
Q: How can employers minimize the receipt of SSA No-match Letters?
A: Employers can use the Social Security Number Verification Service (SSNVS). SSA offers this free online service that allows registered users (employers and authorized third-party submitters) to verify the names and SSNs of employees against SSA records. Telephone Number Employer Verification (TNEV) is very similar to SSNVS, but it is an automated telephone service that allows registered users to verify names and SSNs over the telephone without speaking to an agent. Verifying SSNs through SSNVS and TNEV allows SSA to properly credit the correct earnings to the correct individual's earnings record. These services can only be used for wage reporting purposes. An employer’s use of SSNVS or TNEV for any other reason (e.g., to verify work authorization) is improper and may violate the anti-discrimination provision of the INA. Click here for more information or contact OSC at the telephone numbers indicated below.
Q: Do any other types of organizations send notices suggesting possible name/SSN no-matches?
A: Yes. Other organizations issue notices or provide alerts similar to SSA no-match letters. They include:
- Commercial businesses that conduct employee background checks.
- Third-party identity theft inquiries.
- Health providers providing services to an employee under an employer-provided health plan.
Employers may receive information from these sources by mail, email, other electronic format, or telephone. Such reports or alerts, however, should be treated cautiously, and should not be used as conclusive evidence of employment authorization, as these third-party reporting entities have no legal authority to determine an individual’s work authority and may not have access to current information contained in SSA’s databases. However, as in the case of responding to no-match letters originating directly from SSA, an employer should at a minimum follow the same policies, procedures, and timelines as it does for SSA no-match letters.
When is it Appropriate to Terminate an Employee Who is the Subject of an SSN No-Match?
An employer should not terminate an employee based solely on the receipt of an SSN no-match notice. However, an employer must terminate an employee who, in response to an SSN no-match notice, admits that he or she is not authorized to work in the United States. An employer also may have grounds for termination if the employee refuses to take any steps to resolve the SSN discrepancy after having been given a reasonable period of time to do so. Employers should consult with legal counsel before taking any such adverse action against the affected employee.
How to Minimize the Risks of Civil and Criminal Enforcement Actions Relating to Immigration-Related Employment Practices
On Oct. 6, 2010, Secretary Napolitano issued a statement announcing record-breaking immigration enforcement statistics achieved under the Obama administration:
Since January 2009, ICE has audited more than 3,200 employers suspected of hiring illegal labor, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions-more than the total amount of audits and debarments than during the entire previous administration. Click here for more information.
What can an employer do to minimize the risk of civil or criminal penalties for unfair or illegal immigration-related employment practices? The following are some suggestions for immigration compliance “best practices”:
- Written Compliance Policy. Adopt a written Immigration Compliance Policy and communicate to all managers and staff the importance of adhering to this policy.
- Warn Managers About Civil and Criminal Penalties. Alert managers and staff to the risk of civil and criminal penalties for immigration violations, the government’s use of undercover agents posing as job applicants, and the government’s use of current or former employees wearing a hidden wire (including illegal aliens granted amnesty in exchange for their cooperation and testimony).
- I-9 Training. Train anyone who is responsible for completing I-9 forms. Centralize the completion and retention of I-9 forms as much as possible to promote uniform practices and to ensure quick and easy access to the forms in the case of an internal audit or a government audit.
- Internal Audits. Conduct a regular internal audit of I-9 forms (once a year or in conjunction with other types of internal audits). The audit should be done by someone who is knowledgeable and experienced (e.g., in-house or outside counsel or a trained paralegal), but not the person responsible for completing I-9 forms on a regular basis.
- Nondiscrimination. All new hires should be treated the same. Do not take extra measures for foreign-born employees or persons of certain ethnic groups. Do not require U.S. citizenship as a condition of hiring unless required by law or federal government contract. But it is permissible to ask applicants if they will be authorized to work in the United States at the time of hire and whether they will require immigration sponsorship by the employer.
- Timing of I-9. In most circumstances, the I-9 form should be completed within three days after the person is hired. It cannot be used to screen job applicants. Social Security name checks also cannot be used to screen new hires.
- Document Abuse. The new hire can submit any of the documents listed on the I-9 form. The employer cannot tell the new hire which documents to submit or require documents different from the ones chosen by the new hire.
- False Documents. Be sure the documents submitted by new hires are originals (not copies) and that they appear to be genuine and to apply to the person in question. Ask the new hire to explain any inconsistencies or irregularities. Consult with counsel if you have reasons to doubt the authenticity of documents.
- Document Retention. Keep I-9 forms in a central location separate from individual personnel files. Keep separate files for current and past employees. Discard I-9 forms three years after date of hire or one year after date of termination (whichever is later).
- Reverification. If the new hire’s employment authorization has an expiration date, be sure to reverify using Section 3 of the I-9 form prior to the expiration date.
- SSN No-Match Letters. Do not ignore Social Security no-match letters or other information relating to discrepancies between an employee’s name and Social Security number. Follow instructions in the SSA no-match letter and encourage the employee to resolve the discrepancy. Do not take adverse action (such as suspension or termination) based solely on an SSA no-match.
- Termination of Workers Found to be Illegal. Terminate any employee immediately if you have actual knowledge that the employee is not authorized to work (e.g., if the employee confesses to having submitted false documents for I-9 purposes).
- Harboring Illegal Aliens. Do not say or do anything that may be interpreted as helping or assisting an illegal alien gain employment or continue working with false documents. Recognize that an illegal worker or job applicant may be a wired informant working with the government on a prolonged worksite enforcement action, both prior to and after an immigration audit or raid.
- Corrections to I-9 Forms. If you find mistakes were made on I-9 forms, correct them and date and initial the changes (do not re-do the forms with a new “original” date or try to hide the mistake and correction).
- Copying Documents Submitted for I-9 Purposes. Although not required, it is permitted to make copies of the original documents submitted by the new hire during the I-9 process. Making copies will provide supporting materials in case of an agency audit and will facilitate internal audits. It may also help avoid civil fines for technical and procedural I-9 paperwork violations. Whatever you do, be consistent with all new hires.
- E-Verify. If you are in an industry with high rates of SSN no-matches or a high rate of actual or suspected illegal workers, consider signing up for the E-Verify program to screen new hires against SSA and DHS databases. Click here for information on the E-Verify program.