Like a blast from 1993, SSA has triumphantly reprised its No-Match Letter initiative (a.k.a. “Employer Correction Request”). When first launched in 1993, the program created widespread confusion, and even panic, among businesses across the country, most notably in agriculture. After a series of lawsuits, the Obama administration ultimately suspended the program in 2012. As of March 2019, SSA has resumed using No-Match letters to businesses throughout the country that have been identified as having at least one W-2 form that contradicts information in SSA records.

Employers, however, should be cautioned that there are a variety of reasons why information contained in payroll records may not match information found in SSA records, and should not take rash action. Issuance of such a letter does not necessarily mean that an employee is undocumented or lacks employment authorization. For example, any of the following events could result in a discrepancy:

1. typographical data entry errors by SSA
2. reporting errors by an employer or employee
3. identify theft
4. errors in hyphenated or multiple last names
5. name change due to marriage or divorce

It is clear that employers receiving a No-Match letter must take proper steps to address such requests, but should not assume that issuance of such a letter is evidence of an unauthorized or undocumented employee. Indeed, an employer can be held liable for employment discrimination if premature action is taken. Such rash action could have the same consequences as non-action. SSA has made clear that employers should not take adverse employment action against an employee solely based on the No-Match letter. SSA includes the following statement:

You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual , just because his or her SSN or name does not match our records. Any of those actions could, in fact, violate State or Federal law and subject you to legal consequences.

Why is this? The U.S. Department of Justice Immigrant and Employee Rights Section is the agency charged with enforcing unfair employment practices and workplace discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a number of factors, including national origin through provisions that prohibit unfair documentary practices on the basis of citizenship, national origin or immigration status. We see this most often in the context of I-9 regulations by restricting employers from soliciting or requesting excessive or unnecessary documents as part of the I-9 verification process. It equally extends to the No-Match Letter scenario. If an employer terminates an employee simply because there is a discrepancy in payroll records and in SSA records, this could lead to an allegation of employment discrimination.

It is clear that we are living in an unprecedented culture of enforcement across government agencies. We have seen a shift from employee-focused enforcement actions to employer/workplace enforcement in an effort to eliminate the so-called magnet of our illegal immigration problem. We have seen parallels with the I-9 program as Notices of Inspection/I-9 Audits have skyrocketed to an all-time high. Employers would be well-served to treat SSA No-Match protocols similar to how it addresses I-9 compliance issues.

Information contained in SSA records, including discrepancies, is not automatically shared with other enforcement agencies, including Immigration Customs and Enforcement (ICE). Indeed, federal courts have held that SSA is prohibited from sharing information concerning the names of employers receiving no-match letters as such information is confidential under tax laws. See Judicial Watch v. SSA, 701 F.3d 379 (D.C. Cir. 2012). Despite this prohibition, however, the U.S. Department of Homeland Security (DHS), including ICE, may request information from SSA for the purpose of identifying and locating aliens in the U.S. and enforcing laws. U.S.C. §552(b)(7). The breadth of this statute in enforcing immigration laws creates much risk for employers.

How should an employer respond?

To be clear, receipt of the No-Match letter alone, does not by itself, constitute constructive knowledge that a named employee is not authorized to work, or is undocumented. At the same time, however, an employer must take immediate steps to remedy the discrepancy. As part of the I-9 audit process, ICE has traditionally requested documentation regarding compliance with No-Match inquiries. Immigration officials may regard an employer’s failure to act on a No-Match letter as evidence of constructive knowledge of unauthorized employment. The employer’s action plan, should include the following steps:

I. Initial Receipt of No-Match Letter

• Recognize and train human resources staff that the name/SSN no matches can result because of simple administrative errors
• Do NOT assume that the no-match implicates an employee’s immigration status or work authorization

• Review payroll records, W-4, Form I-9, Social Security number verification system (SSNVS) record, and any other documents in the employer’s file that contains the employee’s SSN to ensure that the name and SSN are correctly shown on documents.

II. Communicating with Employee

If internal review confirms a no-match:

• Provide written notification to the affected employee of the No-Match letter immediately and request that they confirm the name/SSN reflected in the employer’s personnel records
• Advise the employee to contact the SSA to correct and/or update their records
• Give the employee a reasonable period of time to address a reported no-match. There are no federal statutes or regulations that define “reasonable period of time” in connection with the resolution of a no-match notice. In other contexts, such as E-Verify, however, SSA has held that 120 days could be considered reasonable for resolving an issue concerning right to work.
• Be consistent! Follow the same procedures for all employees regardless of citizenship status or national origin.

III. Follow-up Actions

• To demonstrate good-faith compliance, regularly follow-up with affected employee and document efforts in resolving the no-match
• Review any documents the employee chooses to offer establishing resolution
• Submit any employer or employee corrections to SSA
• Do NOT attempt to immediately re-verify employment eligibility through completion of a new I-9 form: this is employment discrimination
• Do NOT require the employee to produce specific I-9 related documentation to address a no match inquiry
• Do NOT require the employee to provide a written report of SSA verification

The return of the No-Match letter is a not-so-subtle reminder that we are operating under a robust worksite enforcement regime. It is critical that employers in all industries make compliance a priority and ensure accurate records for wage reporting and I-9 records. Employers may not be able to avoid issuance of a no-match letter, but it can have procedures in place to address it when it does arrive. Now is the time to development compliance programs and enforcement response procedures, whether it be for I-9 or SSA compliance.