The Social Security Administration (SSA) is set to resume the practice of sending “no match” letters to employers whenever it discovers that the name and social security number on wage and tax statements (Form W-2) do not match its records. The practice was suspended in 2012, but the SSA says it will start sending the letters again in spring 2019.
So, what should you do if you receive one of these letters? An immediate mistake would be jumping to the conclusion that there’s a mismatch because the employee was not authorized to work and provided a fake or stolen social security number. Making assumptions about an employee’s immigration status or work authorization can run afoul of anti-discrimination laws. An incorrect match could be the result of numerous factors, including input errors by the SSA; reporting errors by the employer; a change of name because of marriage or divorce; or errors in reporting proper, culturally-based hyphenated or multiple surnames.
But, you cannot just ignore the letter. The Office of Special Counsel for Immigration-Related Unfair Employment Practices provides the following advice to employers who receive a no-match letter:
- Recognize that name/social security number (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 your personnel records.
- Advise the employee to contact the SSA to correct and/or update his or 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.
The SSA also provides a sample notice letter employers can use if they receive a no-match letter. A big question that comes up is: what is a “reasonable period of time” for employees to address no-match issues? Unfortunately, there is no Federal law or regulation that defines a reasonable period of time in this context. The Office of Special Counsel notes that it depends on the totality of the circumstances and goes on to state that “in the E-Verify context SSA has the ability to put a tentative nonconfirmation into continuance for up to 120 days.” This suggests that it can take up to 120 days for the SSA to resolve discrepancies within its own database. Nonetheless, the SSA has lowered the period of time employers are given to make corrections in response to a no-match letter from 90 days to 60 days. In other words, the SSA gives itself a much longer period of time to correct discrepancies than it will give to businesses that have to respond to a no-match letter. Therefore, if you receive a no-match letter and cannot resolve it immediately through correction of a clear clerical error, you should consult with an attorney to determine what steps to take next. In this situation, counsel can help you balance diverging obligations to accurately report compensation, to not discriminate against workers and to employ only individuals who are authorized to work in the U.S.
Neemah A. Esmaeilpour is a partner at Wright Lindsey Jennings in Little Rock. His labor and employment practice includes a focus on employment-based immigration with an emphasis on petitions for foreign-born physicians, academics and researchers. Email him at NEsmaeilpour@WLJ.com.