Here They Come (Again)—Social Security No Letters!
Social Security Administration (“SSA”) no-match letters have returned—again. The letters have resumed after a SSA no-match letter-hiatus which began in 2007 when the Department of Homeland Security’s 2007 no-match regulation (which has now been rescinded) was blocked by a court.
Employers are obligated to follow-up on the new no-match letters. Follow-up can be summarized in three steps:
(1) Attempt to resolve the mismatch by promptly comparing the employer’s records with the employee’s Social Security Number (“SSN”) and verifying with the employee.
(2) If no error can be discovered, notify the employee in writing with instructions advising the employee to contact the SSA to correct and/or update his or her SSA records.
(3) Get a compliance policy in place, apply it consistently for all employees, and keep records of all actions taken and correspondence.
Employers should not assume that a no-match letter means an employee is unauthorized. The no-match letter does not give an employer a basis to terminate, but in the process of following up, it may impose an obligation to re-verify the I-9 or even terminate. Taking adverse action against an employee based solely upon a no-match letter could result in a charge of immigration-related discrimination under the Immigration and Nationality Act (INA), as well as other state or Federal equal employment opportunity or labor laws.
After step 2, notifying the employee in writing, an employer must provide the employee with a “reasonable period” of time to address a reported no-match with the local SSA office. There are no federal statutes or regulations that define a “reasonable period.” However, the Department of Justice and the ICE suggest that, depending on the circumstances, an employee may need up to 2-4 months to resolve the discrepancy.
If the employee does not submit corrected information, do not automatically fire or re-verify. Go back to the I-9 and evaluate it. If the questionable SSN was used on the I-9, the employer will need to re-verify. When going through the re-verify process, follow the same procedures for all employees regardless of citizenship or national origin. An employer cannot require the employee to produce specific I-9 documents to address the no-match. Be cautious, however, to not accept any document with the questionable SSN unless and until the mismatch has been resolved. Also be cautious, any employee who admits to being unauthorized to work must be terminated immediately.
If the employee attempts to use an entirely different identity, the employer has a right and obligation to require an explanation. If there is a legitimate reason, such as a legal name change, then the employer can accept it and re-verify the I-9. If an employer is unable to resolve the mismatch because the employee is unable to provide a Social Security card, or may no longer work for the employer, the employer should document efforts made to obtain the corrected information and retain the documentation for four years.
Finally, if the employee cannot provide corrected information, let company policy control. Employers may have policies of terminating for failure to provide accurate information, but be sure such a policy is clear and consistent. If no policy exists, the employer can continue to employ the person, but realize that they an employer may not be able to terminate others who provide inaccurate personal data. Finally, the same rule with a reasonable period applies: if your company has a policy to discharge employees who fail to provide correct information, then such policy may be enforced only after a reasonable period of time.
Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.