Starting April 6, 2011 the Social Security Administration (SSA) resumed sending its “no-match” letters (or “decentralized correspondence (DECOR) letters”) to advise employers of reported social security numbers that do not coincide with SSA’s records. In 2007, SSA stopped sending DECOR letters due to federal litigation focused on an insert that the Immigration and Customs Enforcement agency (ICE) wanted to include with the letters. The insert contained language cautioning the employer that a 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 new version of the letter, which can be found on the SSA website at https://secure.ssa.gov/apps10/poms.nsf/lnx/0900901050, does not include the ICE insert. Rather, the new DECOR letter lists only one employee per letter and indicates that failure to respond prevents SSA from crediting the employee with the correct wages. The letter advises that there may be many reasons for the “no-match” letter, such as typographical errors, name changes, and incomplete information, and 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.”
How and When to Respond
With the advice of counsel, employers must establish effective strategies to address employer DECOR letters within a reasonable time period and in a non-discriminatory manner. Differing guidance from key agencies makes it difficult to develop one set of procedures to satisfy all government expectations. SSA field guidance suggests that employers check their records to determine if their information matches the records submitted and to ask the employee to check their records to ensure that they have accurately reported their name and social security number to the employer. If the employer and the employee are unable to resolve the issue, the employer should instruct the employee to contact a local SSA office and provide the employee with a reasonable amount of time to resolve the discrepancy. SSA Frequently Asked Questions (FAQs) note that, “it takes approximately 10 to 14 days to receive [a] replacement social security card.” In contrast, the SSA Program Operations Manual System estimates that it can take two months or longer to get a new or replacement Social Security card.” Moreover, the now rescinded DHS regulations regarding “no-match” letter procedures gave the employer up to 90 days to resolve the discrepancy and, the Department of Justice’s Office of Special Counsel (OSC) has suggested that 120 days is appropriate.
The SSA field guidance advises employers who cannot resolve the mismatch because the employee is unable to provide a social security card or may no longer work for the employer to document efforts to obtain the corrected information and retain the documentation for four years. OSC guidance goes further, stating that an employer should not terminate a worker based only on the receipt of a no-match letter, nor should it attempt to re-verify work authorization by requesting completion of a new I-9 form. Both of these stances are difficult to reconcile with the fact that ICE routinely requests copies of all SSA no-match letters and related correspondence in its audits and uses no-match letters as a basis for multiple criminal investigations and prosecutions on charges of harboring or knowingly hiring unauthorized aliens.
ICE’s rescinded guidance described a procedure that it deemed to be a reasonable response to a no-match letter. Although not a regulatory requirement, ICE typically expects an employer to review its records, communicate with the worker named in the letter, and resolve the discrepancy, including the completion of a new I-9 with updated work authorization documents if the social security number in questions cannot be validated. In spite of the varying agency approaches, the one clear message is that a failure to take any action upon receipt of a “no-match” letter will be viewed very negatively by the government.