Social Security No-Match Letters
After a lengthy pause, the Social Security Administration (SSA) is once again issuing Employer Correction Request Notices, commonly known as “no-match letters.” Since March, the SSA has reportedly issued approximately 575,000 no-match letters to employers. While these letters may appear ominous, the stated purpose of the letters is to enlist employer help in ensuring that the Social Security accounts of employees are properly credited for the wages they earned from the work they performed.
Unlike in prior years, the current version of the no-match letter does not contain the names or Social Security numbers of those employees (or former employees) triggering the SSA’s request for assistance. Instead, the letter directs you to the Business Services Online program , where, after a registration process if your company is not already registered, you are able to use the Employer Report Status to view the names of the individuals with mismatched information. In addition, the letter instructs employers to submit a W2-C form correcting any erroneous information within 60 days of receipt.
While it might be tempting to toss the letter aside, we would instead recommend taking the following steps:
1. Review the Letter
While the letter can appear threatening and steps should be taken, the letter is neither an allegation that you have knowingly employed undocumented employees nor that any of the employees you have hired are in fact working illegally. As the letter notes, there are a number of reasons why an employee could be the subject of a no-match letter even though s/he and you have done nothing wrong:
- A clerical errors by the employee, employer, or SSA An error on behalf of the employee
- Name changes resulting from marriage, divorce, or naturalization that an employee neglected to report
- Identify theft
- Errors in reporting multiple surnames or hyphenated last names Remember that the SSA is not an enforcement agency and cannot issue fines or otherwise prosecute violations.
2. Conduct Your Own
Investigation of the Discrepancies As the letter suggests, you should first visit the Business Services Online program and determine which employees have a discrepancy in their information. After compiling your list of employees and the Social Security numbers the SSA has on file for those individuals, try to match that information against the information you have recorded to try to determine the basis of the reporting error. Pay attention to the spelling of the names and any accent marks or hyphenations that may have been erroneously added or omitted. It is best to review your own records first before engaging your employees in the investigation process.
3. Privately Meet with Employees to Discuss the Letter
After comparing your information with that recorded by the SSA, conduct private meetings with employees to begin the correction process. If you know of or anticipate any language barrier, have an interpreter present. Explain that the SSA believes that there is erroneous information and has asked you to verify the SSA’s information in order to ensure that their Social Security earnings will be going to the correct account. Make sure to provide a copy of the letter to the employee. Then, ask employees to confirm their full legal name, including spelling, accent marks, and hyphenations, date of birth, as well as their Social Security number. If you confirm with the employee that the error was merely a clerical error that can easily be corrected (e.g. a transposition of numbers, a name change, a misspelling, etc.), then you can have the employee complete a W2-C form to correct the information.
If there is no clerical error, then you should direct the employee to reach out to the nearest Social Security office to begin the process of resolving the discrepancy. Provide the employee a copy of the contact information of the nearest SSA office. Other than letting the employee know s/he can reach out to the SSA with any questions, do not attempt give any advice on how to handle the issue.
If the employee has been terminated or resigned, you should still attempt to reach out to that individual. You can do so using the Sample Notice the SSA has prepared, which is posted on its website at: https://www.ssa.gov/employer/notices/SSNVSsampleLetter.pdf This form can be mailed to former employees at their last known addresses.
4. Schedule Periodic Check-Ins with Employees
Because you have 60 days to provide the SSA with corrected information, for any employee you direct to go to the nearest SSA office, you should schedule periodic check-ins (such as at the 15-day mark, 30-day mark, etc.) with the employee to see if s/he requires any assistance in contacting the SSA and or getting the information corrected. This check-in can take the form of another meeting with the employee, or it can be a simple as an e-mail reminder or letter home. Not only will these meetings and communications help to get the issued resolved, it will also show you actively worked with the employee in “good-faith” to remain in compliance with the law.
5. Be Wary of the Immigration and Nationality Act
The investigation of no-match letters provides a number of pitfalls for employers with regard to remaining in compliance with the Immigration and Nationality Act (INA). The INA prohibits discrimination based on national origin, citizenship status, immigration status, requiring specific documents or more than the minimum documents to verify employment eligibility, and retaliation. Thus, care should be taken when conducting an investigation of why there is a discrepancy between what is on file with the SSA and your records.
- Terminating, suspending, or taking any other adverse action against an employee solely because of the no-match notice;
- Conducting a no-match investigation differently for some employees rather than others (e.g. only scheduling meetings or periodic check-ins with Hispanic employees);
- Requiring an employee to produce documents in order to address the no-match;
- Asking an employee to complete a new I-9 due solely to the receipt of a no-match letter;
- Requiring an employee to produce specific written evidence from the SSA or any other government entity that a no-match has been resolved.
6. Document Everything
When no-match letters were sent out under the Bush Administration in 2006, there were safe harbor provisions that protected employers from a claim that the no-match letter provided an employer with constructive notice of employment of an unauthorized worker in violation of the INA. For a variety of reasons, this safe harbor was rescinded in 2009 and was not revived with the issuance of no-match letters in March 2019. This leaves employers on their own to walk a thin line between investigating enough to avoid an allegation of constructive knowledge of a violation of the INA, but not so much that they could be subject to a discrimination lawsuit.
Other than seeking legal counsel, the most important step you can take is to document all of your interactions with the employees and the steps you have taken to remain in compliance with the law. As part of the documentation, it is helpful to draw up a policy to disseminate to all employer representatives who will take part in responding to the no-match letter and communicating with employees regarding the letters. This policy should include information related to when and how in-person meetings should be conducted; a script to follow when discussing no-match letters with employees; and an emphasis that no adverse actions should be taken against employees who are the subject of a no-match letter.
With regard to in-person meetings with the employee, optimally there should be two employer representatives present – one to conduct the meeting and another to take notes. If any written communications are issued to the employee, those communications and any responses should be maintained in the employee’s personnel file, along with a copy of the notes taken during the meeting.
7. Consult Your Lawyer Prior to Taking any Disciplinary Action
You should refrain from taking any sort of disciplinary action due to the receipt of the no-match letter. That does not mean you are required to keep an employee who is not legally authorized to work in the United States. Therefore, if the employee admits s/he is not authorized to work in the United States during the investigation process, you are obligated to terminate employment.
You should consult with your lawyer if an employee fails to correct SSN information despite reminders. Generally, it is best to give an employee approximately 60-90 days to address the issue prior to taking any disciplinary action. However, if you neglect to take action when an employee ignores your reminders, it is possible U.S. Immigration and Customs Enforcement (ICE) could determine that you have constructive knowledge that an employee does not have work authorization.
8. Respond to the No-Match Letter
Once an employee has addressed the issue with the SSA, the employer should then report back to the SSA by either submitting a W2-C form correcting the misinformation or letting the SSA know the results of the investigation (e.g. whether an employee is still in the process of correcting the information) within the requisite 60-day window after you received the letter. Ignoring a no-match letter will not be helpful in disproving that you have unauthorized workers on your payroll.
Further, should you subsequently be subject to an I-9 audit, it is possible ICE will request that you produce any no-match letters you have received. In fact, General Counsel for United States Citizenship and Immigration Service previously reported that I-9 violations were more likely to be found if an employer did not take any action after receiving a no-match letter. Therefore, it is imperative to show you have taken affirmative steps in correcting any employment verification issues.
9. Consider Conducting an I-9 Self-Audit
Depending on how many employees are the subject of the no-match letters, it may not be long before employees learn you are verifying Social Security numbers. It would be beneficial to conduct your own I-9 self-audit in order to address any other inconsistencies and ensure you remain in compliance with the law. You should consider your business needs prior to going forward with a self-audit in case the audit prompts employees to quit. You can learn more about how to conduct a self-audit by contacting your counsel at Elarbee Thompson.
10. Avoid Future No-Match Letters
The SSA provides a Social Security Number Verification Service (SSNVS) for registered users, which includes employers. Using this service, you can determine whether there are any discrepancies in an employee’s information that you can address prior to the filing of W-2 forms. Be aware that you cannot use this information for any reason other than wage verification.
In addition, you can set up a process by which you regularly check employee information to ensure it is up-to-date. Again, you can use the SSNVS to do this. Be careful to ensure you are checking the information for all employees, otherwise your practice could be considered discriminatory.
To conclude, upon receipt of a no-match letter, you should first read the letter and set up an account with the SSA to learn which employees are the subject of the letter. After matching your records with the information the SSA has on file, you should begin the process of meeting with employees to discern the reason for the error and direct them to follow up with the SSA if needed to correct the problem. Make sure you timely respond to the SSA with the results of your investigation within 60 days of your receipt of the letter. Because your obligations in responding to the letter are not entirely clear, and no safe harbor provision has been implemented, it is best to confer with your local counsel to develop a policy on how to proceed with your investigation.
If you have any questions or concerns about a specific situation, please contact Elarbee Thompson.