AuGusT
HANDLING
SOCIAL SECURITY
NO-MATCH LETTERS
WHAT EMPLOYERS NEED TO KNOW
DIANE M. BUTLER, LANE POWELL PC
c o lu m ns :: LAW
Handling social security
No-Match letters
what employers need to know
diane m. butler
Receipt of any letter from the government
about being out of compliance can cause
alarm for a business. The Social Security
Administration (SSA) recently resumed
notifying employers of mismatches between
an employee’s name and Social Security
number (SSN), known as “No-Match”
letters. A No-Match letter informs the
employer that discrepancies exist between
an employee’s name and Social Security
number contained in SSA’s database,
against those on the employee’s W-2 form.
The purpose is to enable the SSA to allocate
Social Security funds correctly.
SSA had stopped sending No-Match
letters in 2007 and 2008 (tax years 2006 and
2007), in response to litigation surrounding
a proposed Department of Homeland
Security (DHS) regulation, “Safe Harbor
Procedures for Employers Who Receive a
No-Match Letter.” DHS later rescinded the
proposed regulation. SSA recently decided
to resume sending No-Match letters in
April 2011, for tax year 2010.
No-matches are triggered for a variety
of reasons for U.S. and foreign workers
alike. The receipt of a No-Match letter
listing information about an employee does
not mean the employee lacks authorization
to live or work in the United States. SSA
advises employers they should not fire
employees based solely on the employee’s
SSN information being listed on a NoMatch letter. However, an employer must
terminate an employee if it knows the
employee lacks authorization to work in
the United States.
Under case law, unless there are
facts that make the employer believe it
is “highly probable” that the employee
is not legally authorized to work, the
employer is not held to have knowledge or
even constructive knowledge. Given the
possible errors in government databases,
and the many possible reasons for a SSN
mismatch (truncating of long names,
name changes, typographical errors, etc.),
38 :: Buildernews | August 11
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a no-match discrepancy should not create
a presumption of lack of employment
authorization.
In order to prepare for the the possible
recipt of No-Match letters, an employer
should implement procedures to deal with
no-match discrepancies. Here are some
do’s and don’ts:
:: Do keep a copy of the documentation
the employee presented to show
evidence of work authorization
when the Form I-9 for Employment
Eligibility Verification was completed.
:: Do review the employee records of
each person whose SSN is listed on
the No-Match letter and respond to
the SSA with any obvious errors and
descrepancies that you have found.
:: Don’t worry about checking the
records of persons no longer
employed by the company. Simply
notify the SSA that the person’s
employment was terminated.
:: Do notify the employee in writing of
the discrepancy.
:: Do advise the employee to go to
the Social Security office within
two weeks to attempt to resolve the
discrepancy and to report back about
actions needed to resolve the issue.
:: Do give the employee more time to
resolve the discrepancy, if needed.
:: Do keep records of efforts to resolve
the discrepancy and their status.
:: Don’t terminate an employee who is
in the process of attempting to resolve
the discrepancy.
In some circumstances, an employer
may need to terminate the employee
after receipt of a No-Match letter. If
an employer knows an employee lacks
work authorization, the employer must
terminate the employee or face the risk
in a subsequent DHS enforcement action
and be penalized for the continuing
employment of an unauthorized alien.
If an employer knows an employee lacks
work authorization, the employer must
terminate the employee or face the risk in
a subsequent DHS enforcement action...
An employer can be found to have
constructive knowledge based on the
totality of relevant circumstances.
Good faith, but ultimately unsuccessful,
attempts to comply with the law
should be taken into consideration if
the employer subsequently is charged
with constructive knowledge of hiring
unauthorized workers.
An employer should not terminate an
employee until the process is completed,
unless the employer obtains actual
knowledge (such as through an admission
by the employee), or the employer
believes it is highly probable that the
employee is not eligible for employment
in the United States.
Diane M. Butler
is a shareholder at the
Lane Powell law firm,
where she focuses her
practice on business
immigration and
manages the firm’s
immigration and Canada
practices. She can be
reached at butlerd@lanepowell.com or 206.223.7715.