Effective April 6, 2011, the Social Security Administration ("SSA") has resumed sending "no-match" letters. These letters advise employers that workers are using a social security number ("SSN") that does not coincide with the name in the SSA's database.
Historically, the SSA would send employees a version of the no-match letters if the name and/or SSN listed on the W-2 forms submitted by the employer did not match the information in the SSA database. Prior to 2007, the SSA also sent these no-match letters to the employer. However, the Department of Homeland Security ("DHS") issued its "Safe Harbor" regulation that year. The SSA stopped sending the employer no-match letter until the litigation challenging that regulation was resolved because the letter contained an insert requested by Immigration Customs Enforcement ("ICE") that might have been at issue in that litigation. That insert cautioned employers that "failure to act upon receipt of the SSA no-match letter could be construed as constructive knowledge of knowingly continuing to employ unauthorized workers, based on the totality of the circumstances."
The current version of the SSA no-match letter to employers does not contain the ICE insert or list multiple employee SSNs that the SSA could not match to its database. Citing "Privacy Act" concerns, the current no-match letter addresses only one employee but adds, "[w]e may give this information to the Internal Revenue Service for tax administration purposes or to the Department of Justice for investigating and prosecuting violations of the Social Security Act." Like the earlier version of the employer letter, however, the current version indicates that there may be many reasons for the no-match, such as typographical errors, name changes, and incomplete information, and advises that the receipt of 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."
Even though the current no-match letter does not contain the ICE warning, ICE still considers an employer's failure to address a no-match letter as possible evidence that the employer has violated U.S. immigration laws. For this reason, it is important for employers to develop policies and procedures for handling no-match letters when they arrive. Consistent procedures also will help employers avoid charges of discrimination. In its guidance on how to handle inquiries relating to no-match letters, the SSA advises employers to check their records to determine if their information matches the records submitted and ask employees to check their records to ensure that they have accurately reported their name and social security number to the employer. If the employer and an employee are unable to resolve the issue, the employer should instruct the employee to contact a local SSA office and give the employee a reasonable amount of time to resolve the discrepancy. If an employee is unable to resolve the no-match or obtain a new SSN, he or she may no longer work for the employer. Whenever there is a termination, the employer should document efforts made to obtain the corrected information and retain the documentation for four years.
For additional information on SSA no-match letters, please visit the following websites: https://secure.ssa.gov/apps10/poms.nsf/lnx/0900901050; http://ssa-custhelp.ssa.gov/app/answers/detail/a_id/1666/related/1; and https://secure.ssa.gov/apps10/public/reference.nsf/links/03302011095533AM.