No-Match: A Red Flag for All Employers

As of April 6, 2011, the Social Security Administration (“SSA”) resumed the issuance of “no-match” letters notifying an employer that its records do not match those of the SSA.

 

Don’t Allow the Innocuous Language in the No-Match Letter Fool You.

You will receive a no-match letter when there is a discrepancy between an employee’s name and social security number as reported on a W-2 or W-2c and the SSA’s records. A no-match letter simply states that the SSA cannot put earnings on the employee’s Social Security records until the discrepancy in the records is resolved. In a trap for the unwary, the letters provide no indication that a no-match letter may provide partial evidence that you employ an individual who is unauthorized to work in the United States, and that you consequently could face fines, civil or criminal sanctions.

 

Federal law imposes criminal and civil sanctions for knowingly employing an individual who is unauthorized to work in the United States. 8 U.S.C. § 1324a (2004). Federal contractors face debarment for hiring aliens who are unauthorized to work in the United States. See 48 C.F.R. § 9.406-2(b)(1)(vi)(c)(2) (2008). Receipt of a no-match letter does not necessarily indicate that an employee is unauthorized to work in the United States; a no-match letter may simply be the result of a typo or a clerical error causing a discrepancy with the SSA’s records. Still, a no-match letter is a red-flag to which you must respond.

 

What should I do if I receive a no-match letter?

Every employer should prepare a written policy outlining the steps which it will take if it receives a no-match letter, and implement this policy consistently for all employees. Additionally, employers should seek legal counsel if they receive a no-match letter. Below are some additional basic guidelines:

 

DO, take action immediately by taking the following sequential steps:

• Compare the information that the SSA has on record with that in your personnel files.
• If the information matches, ask the employee whether they are aware of any typos in the information that you and the SSA have on record.
• Ask the employee to provide his or her name and social security number but do not ask the employee to provide a copy of his social security card or other identification.
• If you and the employee cannot resolve the discrepancies, give the employee a “reasonable amount of time” to contact the SSA and try to resolve the discrepancy. 
• Ask the employee for updates on their efforts to resolve the no-match issue with the SSA. 
• Submit any corrections to the SSA.
• Document all efforts and communications related to resolving the “no-match” problem.

DON’T:

• Ignore or throw away the letter.
• Fire, suspend or take other adverse action against the employee which may constitute a violation of anti-discrimination laws. See 8 U.S.C. § 274B (1994).
• Require the employee to complete a new I-9 which may constitute a violation of anti-discrimination laws. 8 U.S.C. § 1324a (2004).
• Start paying the employee “under the table” to avoid the SSA. 
• Instruct the employee to get a new Social Security number.

How can I defend against an allegation that I employed someone unauthorized to work in the United States?

Because you may receive a no-match letter as a result of a typo or clerical error, there is no way to entirely prevent receipt of such a letter. Still, there are various steps you can take which will likely reduce your chances of facing penalties for violating Federal work authorization laws, even if you have received a no-match letter. 

 

This correspondence only provides basic information about the consequences of a no match letter. Jackson Kelly has a team of lawyers available to assist employers in drafting policies to respond to no-match letters, taking preventative steps to defend against a claim of employing an unauthorized worker, responding to no-match letters, or to answer any additional immigration questions. Please contact any of the following:

 

Larry W. Blalock, lblalock@jacksonkelly.com or (304) 233-4000

William A. Hoskins, III, whoskins@jacksonkelly.com or (859) 288-2828

Mary Beth Naumann, mnaumann@jacksonkelly.com or (859) 288-2819

Lara S. Nochomovitz, lnochomovitz@jacksonkelly.com or (303) 362-3890

Erin E. Magee, emagee@jacksonkelly.com or (304) 340-1360

Teena Y. Miller, tymiller@jacksonkelly.com or (304) 233-4000

Christopher K. Robertson, crobertson@jacksonkelly.com or (304) 260-4959

Michael J. Schrier, mjschrier@jacksonkelly.com or (202) 973-0213

J. Eric Whytsell, ewhytsell@jacksonkelly.com or (202) 973-0227