Since early April, the Social Security Administration (SSA) has resumed mailing EDCOR (“educational correspondence”) notices to employers who have filed Forms W-2 for employees that contain discrepancies between the names and Social Security numbers (SSNs) on the Forms W-2 and SSA’s records. Commonly called “No-Match Letters,” these notices give employers the opportunity to correct errors, which often are caused by name changes, typographical errors, and other mistakes not attributable to data misuse.
The SSA has indicated that the purpose of the No-Match Letters is to properly credit earnings records to employee SSA accounts for future benefits payment, not to identify unauthorized workers. As of June 2019, the SSA has mailed over 570,000 letters to employers who filed their 2018 Forms W-2 electronically. In the fall of 2019, the agency plans to mail additional letters to employers who filed 2018 W-2s on paper.
Employers Should Not Ignore No-Match Letters
The boilerplate No-Match Letters direct employers to register for and access SSA’s online system called Business Services Online (BSO) to review a report containing the no-matched employee names and SSNs and submit corrections. Employers are instructed that they have 60 days from their receipt of a No-Match Letter to provide necessary corrections to BSO using the IRS Form W-2c.
Employers should document their efforts to obtain corrected name and/or SSN information from employees and retain such documentation with payroll records for three years. Such documentation could be requested by Immigration and Customs Enforcement (ICE) should the agency conduct an inspection of the employer’s Forms I-9.
Employers should not take disciplinary action, terminate, or otherwise disrupt the employment of identified employees simply because an employee is listed on the BSO report. Moreover, employers should not ask employees to produce documents to address the No-Match Letter. Individuals on the BSO report who are still working for the employer must be treated consistently and given the same instructions regardless of their citizenship status or national origin.
The Department of Justice (DOJ) has issued guidelines how as to respond to SSA No-Match Letters that focus on avoiding unfair immigration-related discrimination. Employers should proceed cautiously when responding to a No-Match Letter since taking adverse employment action based solely on the receipt of a No-Match Letter or acting in a discriminatory manner in the resolution process can lead to civil fines for unlawful immigration-related discrimination. The DOJ guidance, most recently updated in 2015, specifically instructs employers to do the following:
- Recognize that name/SSN no-matches can result because of simple administrative errors.
- Check the reported no-match information against your personnel records.
- Inform the employee of the no-match notice.
- Ask the employee to confirm his/her name/SSN reflected in personnel records.
- Advise the employee to contact the SSA to correct and/or update his/her SSA records.
- Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
- Follow the same procedures for all employees regardless of citizenship status or national origin.
- Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
- Review any document the employee chooses to offer showing resolution of the no-match.
- Submit any employer or employee corrections to the SSA.
- Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
- Use the receipt of a no-match notice alone as a basis to terminate, suspend, or take other adverse action against the employee.
- Attempt to immediately re-verify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
- Follow different procedures for different classes of employees based on national origin or citizenship status.
What If the 60-day Response Period Ends with No Resolution?
The No-Match Letters reference a 60-day employer response period; however, on June 3, 2019, the SSA announced that it does not plan to take any action or impose any SSA-related consequences on employers who cannot correct their records in 60 days. Employers should not interpret this agency stance as a justification not to take action, particularly in today’s enforcement-focused climate within the Department of Homeland Security.
While the SSA has stressed that it is not a law enforcement agency and is only interested in correcting employee wage accounts, there is a risk that the agency could permissibly release details about the employer recipients of No-Match Letters to ICE, which could use the details to target its enforcement activities. SSA can be compelled by court order to disclose details about the employer recipients of No-Match Letters to ICE under Internal Revenue Code Section 6103(i)(1). This law permits the SSA to share information with law enforcement agencies for investigation and prosecution of non-tax criminal laws, including 8 C.F.R. § 1324a(f)(1), which makes it a crime to engage in a pattern or practice of knowingly hiring, continuing to employ, recruiting, or referring for a fee unauthorized workers. Additionally, ICE may request and receive information from the SSA under 8 U.S.C. § 1360(b) to help it identify and locate aliens in the U.S.
If ICE were to lawfully receive information from SSA as to which employers received No-Match Letters, it could target its Form I-9 enforcement activities. On most Form I-9 Notices of Inspection, ICE asks employers whether they have ever received a No-Match Letter and requests to see documentation of their response. Ignoring the letter could lead to ICE finding a lack of a good faith effort to comply with the prohibition on employing unauthorized workers.
Due to the sensitive nature of the workforce issues involved, employers should take the receipt of a No-Match Letter seriously and work with an experienced immigration lawyer to develop a measured and appropriate response plan.