Effective April 6, 2011, the Social Security Administration (SSA) has resumed sending employers “Social Security no-match letters” advising employers that the Social Security numbers (SSNs) reported for certain employees do not match SSA records.

These Social Security no-match letters had been put on hold since 2007 when a federal judge issued a preliminary injunction preventing the Department of Homeland Security (DHS) from implementing a proposed rule that would have made employers liable for the continued employment of an unauthorized alien if the employer failed to follow certain steps in responding to a Social Security no-match letter.

Employers are advised not to take adverse action against an employee solely based on the Social Security no-match letter. At the same time, employers cannot ignore these letters and should be sure to follow the instructions in the letters and the general guidelines recently published by DHS and SSA.

The Department of Justice (DOJ) has recently developed general guidelines for responding to SSA no-match letters.The DOJ’s guidelines specifically state that:

• The employer should not use the receipt of the SSA no-match notice alone as a basis to terminate, suspend, or take other adverse action against the employee.

• Based on the SSA no-match letter alone, the employer should not reverify the employee’s employment eligibility by asking the employee to complete a new Form I-9 or by asking the employee to produce specific documents to address the no-match.

• Based on the SSA no-match letter alone, the employer should not require the employee to provide a written report of SSA verification, as such verification may not be obtainable.

SSA has also issued its own field guidance to its representatives on this issue. The SSA suggests that employers document efforts to obtain the corrected information and retain the documentation for four years.

These guidelines, however, are silent on what the employer should do, if anything, if the employee is unable to resolve the no-match. Under those situations, the employer should consult with legal counsel before taking any adverse action. Of course, if the employee admits that he or she has no work authorization when presented with the no-match letter, the employer is obligated to terminate his or her employment immediately.