Employment Law Advisory for September 4, 2013: The Employee's Social Security Number Doesn't Match: Now What?

As a result of receiving a so-called “no match letter” from the Social Security Administration, or through other means, employers occasionally learn that the Social Security number stated by an employee during the hiring process does not match the information reflected in the Social Security Administration’s records. Employers are subject to a multitude of legal obligations when confronted with potentially invalid Social Security numbers, and efforts to comply with one obligation often put them at risk of violating other obligations. Employers confronted with mismatched Social Security numbers should be careful to assure that they understand the legal issues involved before taking action. 

On the one hand, an employer cannot employ any individual who has not presented it with documents reflecting his or her right to work. Those documents often (but not always) include a Social Security card. On the other hand, an employer could expose itself to the risk of a discrimination suit if it treats a mismatched or invalid Social Security number as proof that the employee is not entitled to work in the United States. So what’s a well-intentioned employer to do?

As is true with many legal issues, it’s not possible to provide a “one-size-fits-all” answer to this question. Nevertheless, employers may be wise to follow these general recommendations in most cases, and to confer with counsel to discuss the specific circumstances of their situation:

  • Don’t ignore the issue, but don’t act rashly – Employers should not ignore reports of mismatched Social Security numbers, but they also should not assume that a mismatched number is proof that the employee in question is not entitled to work in the United States. 
  • Double-check your records – When informed of a mismatched Social Security number, employees should compare the number reflected in their records with the number reported by the Social Security Administration and the employee to assure that the mismatch is not due to an internal error. 
  • If a mismatch truly exists, refer the employee to the Social Security Administration – If the number reported by the employee truly conflicts with the number reported by the Social Security Administration, the employer should notify the employee of the mismatch and direct the employee to contact the Social Security Administration to rectify the problem. Employers should generally give employees at least 120 days to resolve the problem, and should direct the employee to report to the employer periodically on his or her efforts. 
  • Treat new Social Security numbers as valid absent evidence to the contrary – If the employee provides a new Social Security number after being informed of a mismatch, employers should generally accept the new number as valid absent some specific indication that it is not. 
  • If the discrepancy isn’t resolved, determine if the employee’s right to work is based on the validity of the Social Security number – The law permits employees to establish their right to work in the United States with a variety of documents, and one’s right to work can be proved without reference to a Social Security card. If the documents produced by the employee to establish his or her right to work did not include a Social Security card, the employee’s right to work is not dependent on the validity of his or her Social Security card and the employer should not terminate employment based on the mismatched Social Security number. 
  • If the employee’s right to work is dependent on the validity of the Social Security number and he or she cannot resolve the discrepancy, confer with counsel – If the documents produced by the employee to establish his or her right to work included the mismatched Social Security number and the employee has not been able to rectify the discrepancy, the employer may possess constructive notice that the employee is not entitled to work in the United States. Employers facing this circumstance should confer with counsel to discuss their options in detail. 
  • Document your efforts to resolve the discrepancy – Employers should document their efforts to resolve mismatches of Social Security numbers in order to position themselves against potential accusations that they have knowingly employed persons not entitled to work in the United States. 
  • Discharge employees who admit they are not legally entitled to work – Employees who become aware of mismatched Social Security numbers occasionally admit that they are in the United States illegally and are not entitled to work. If the employee makes such an admission, the employer cannot continue to employ him or her and should generally terminate employment after conferring with counsel. 
  • Treat all employees consistently – Employers should treat all employees with mismatched Social Security numbers consistently, regardless of race, national origin or other considerations. 
  • Do not recheck I-9 records for existing employees absent some evidence that the documentation provided is invalid –  Employers may expose themselves to a risk of liability for discrimination if they elect to review I-9 documentation provided by existing employee in the absence of some tangible evidence suggesting that the documentation is invalid, so they should not arbitrarily recheck I-9 records for existing employees. 

Mismatched Social Security numbers present employers with a complex web of legal obligations that often appear to conflict with one another. By following the general advice above and conferring with counsel, employers can significantly reduce their risk of liability in this delicate circumstance. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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