Along with an uptick in I-9 work authorization verification audits, discussed in Part 1, there has been a surge in employers receiving “no-match” letters from the Social Security Administration (SSA). One practitioner notes that a single firm received 2,500 no-match letters. What is an employer liable for, and what to do? Does receipt of a no-match letter constitute constructive knowledge that an employee may not be work-authorized?
No-Match Letters Trend Upward
In March 2019, SSA began mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match the agency’s records. The purpose of the letter, SSA explains, is “to advise employers that corrections are needed in order for us to properly post its employee’s earnings to the correct record.” SSA acknowledges that there are a number of reasons why reported names and SSNs may not agree with its records, such as typographical errors, unreported name changes, and inaccurate or incomplete employer records.
Tips for Employers
SSA recommends following these steps if an SSN fails to be verified:
- Compare the failed SSN with your employment records. Correct any typographical errors and resubmit the corrected data. If the name is hyphenated, consider trying different versions of the name.
- If your employment records match your submission, ask your employee to check his or her Social Security card and inform you of any name or SSN difference between your records and his or her card. If your employment records are incorrect, correct your records and resubmit the corrected data.
- If your employment record and the employee’s Social Security card match, ask the employee to check with any local SSA office to resolve the issue. Once the employee has contacted the SSA office, he or she should inform you of any changes. You should correct your records accordingly and resubmit the corrected data.
- If the employee is unable to provide a valid SSN, SSA encourages you to document your efforts to obtain the correct information. Documentation should be retained with payroll records for three years.
- If you are unable to contact the employee, SSA encourages you to document your efforts.
- If you have already sent a W-2 form with an incorrect name and/or SSN, submit a Form W-2c (Corrected Wage and Tax Statement) to correct the mismatch.
SSA notes that a mismatch is not a basis by itself for you to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that employee. An employer that uses such a mismatch to take “inappropriate adverse action” against a worker may violate state or federal law. Also, SSA notes, the information received regarding SSN verification “does not make any statement regarding a worker’s immigration status.” Even if an employer receives multiple no-match letters for the same employee, that is not an indication that the worker lacks authorization to work and may simply be a reflection of an unresolved disrepancy at SSA.
Note that although an SSA no-match by itself is insufficient to put an employer on notice that an employee is unauthorized to work, or to require reverification of I-9 documents or further inquiry as to the employee’s work authorization, it may be risky for an employer not to follow up beyond merely notifying an employee that a no-match letter has been received. Within the parameters of the law, it is always advisable for an employer to resolve an employee’s authorization to work to the employer’s satisfaction, and to document those efforts, with the caution that requiring only employees of certain national origins or racial/ethnic identities to reverify their immigration status or work authorization, or requiring more or different documents than allowed by law, could constitute an antidiscrimination violation. Here again, as with I-9 verifications discussed in Part 1, company policy should be applied consistently to all workers.
Frequently asked questions on name/SSN no-matches, Department of Justice
Frequently asked questions and toolkit on no-match letters, National Immigration Law Center, https://www.nilc.org/issues/workersrights/no-match-letter-toolkit/social-security-no-match-letters-faq/, https://www.nilc.org/issues/workersrights/no-match-letter-toolkit/