After a break of four years, the Social Security Administration (SSA) has once again started sending “no-match” letters to employers notifying them that the Social Security number (SSN) reported on a W-2 form does not match an employee’s name in SSA records.
The new version of the letter differs in some significant respects from the previous version which was used until 2007. The new version does not include an insert from Immigration & Customs Enforcement (ICE) warning employers that failure to take action in response to a no-match letter could be construed as evidence of an employer’s constructive knowledge that it was continuing to employ an unauthorized worker. The new version also only lists one employee per letter, rather than providing information on multiple employees.
The letter explains:
This letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing or discriminating against the individual. Any employer that uses the information in this letter to justify taking adverse action against an employee may violate state or Federal law and be subject to legal consequences. Moreover, this letter makes no statement about your employee’s immigration status.
ICE had proposed a rule in 2007 detailing procedures for responding to no-match letters that would have provided employers with a “safe harbor” from any adverse action by ICE. As previously reported, a federal judge halted the rule’s implementation, and in 2009, ICE rescinded the rule.
However, ICE has not forgotten the no-match letter. In its comments accompanying the rescission of the rule, ICE included the following statement:
Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of “constructive knowledge.” A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their [sic] own records for errors, inform the employee of the no-match letter, and ask the employee to review the information. Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.
In proposing the rescission, ICE went so far as to include a summary of criminal prosecutions of employers for misconduct after receiving a no-match letter. Significantly, ICE investigations of I-9 records continue to include requests for copies of no-match letters received by the employer.
Although there is no current guidance for employers from ICE, the Office of Special Counsel for Immigration-Related Employment Practices of the Department of Justice (OSC) does offer some general guidelines for employers to follow in responding to no-match letters.
The guidelines explain that employers should not terminate workers based on receipt of a no-match letter alone, nor should they attempt to re-verify work authorization by requesting completion of a new I-9 form. Instead, OSC advises employers to provide workers a “reasonable period of time” to resolve any discrepancy in SSA records.
There are, however, no federal statutes or regulations in effect that define this reasonable period of time. OSC advises that a “reasonable period of time” depends on “the totality of the circumstances.” The rescinded ICE guidance had allowed up to 90 days. For E-Verify purposes, SSA can put a tentative nonconfirmation of work authorization in place for up to 120 days, suggesting that might be a reasonable period of time to resolve discrepancies.
Unfortunately, the net effect of the various actions and inactions of the government agencies described above is that employers know they cannot ignore no-match letters, but have no reliable government guidance as to how to respond. Employers should work with counsel to develop consistent, non-discriminatory procedures that provide employees a “reasonable period of time” to resolve no-matches. What is clear is that employers should not terminate employees based on receipt of a no-match letter alone. What is not clear is how much time, and what guidance, if any, they should provide employees.