On October 23, 2008, the U.S. Department of Homeland Security (DHS) issued a supplemental final rule regarding Social Security "No-Match Letters."
In the initial "No Match" rule published last summer, DHS outlined a series of steps an employer should take upon receipt of a letter from the Social Security Administration (SSA) stating that the information submitted for an employee does not match SSA records (otherwise known as an SSA “no-match” letter, including giving the employer and employee 90 days to resolve the mismatch. However, the original rule was never implemented due to a lawsuit. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a lawsuit against DHS, claiming that the rule is inconsistent with current federal law and would result in irreparable harm to workers and employers if implemented. On August 31, 2007, a federal judge in California granted a temporary injunction filed by the AFL-CIO, and the SSA, precluded from referencing the DHS rule, did not send out No Match notices to an estimated 140,000 employers nationwide.
This new supplemental final rule contains some additional analysis but there is no substantial change from the original "No Match" rule. DHS Secretary Michael Chertoff stated that DHS has "taken action to address the courts' concerns on the original rule," and "will ask the court to lift the injunction." A status hearing is scheduled for November 21, 2008. If the court grants DHS's motion, then the supplemental rule can be implemented.