By Frances Haas
In or around 2007, the Social Security Administration ("SSA") suspended, for the most part, its practice of sending no-match letters to employers. A "no-match letter" is correspondence the SSA sends an employer when the SSA is unable to match an employee's social security number with the information contained in the SSA's database. Recently, the SSA resumed sending no-match letters to employers based upon 2010 wage reports. Accordingly, employers should be prepared to receive and respond appropriately to the SSA's no-match letters.
Employers should keep a few thoughts in mind when reviewing SSA no-match letters:
(1) Avoid taking immediate action against an employee identified in a no-match letter. A common misperception regarding no-match letters is that the employee in question must be using a false name or social security number. However, there are many reasons other than fraud for the SSA to generate a no-match letter, such as data entry errors, confusion over multiple or hyphenated last names, or unreported name changes. The new no-match letters advise that receipt of a no-match letter "is not a basis, in and of itself, for [the employer] to take adverse action against an employee, such as laying off, suspending, firing, or discriminating against" the individual identified in the no-match letter. An employee who feels he or she was treated unfairly or was overly scrutinized due to a no-match letter could potentially lodge a discrimination complaint.
(2) A responsible employer should investigate each no-match letter and take appropriate action. An employer that turns a blind eye to a no-match letter risks further government scrutiny that could include an investigation by Immigration and Customs Enforcement ("ICE"). Recently, ICE has ramped up its workplace audits, which includes review of any no-match letters an employer receives. In these audits, it is helpful for the employer to put its best foot forward, and showing that the employer appropriately responded to a no-match letter may help an employer avoid charges of knowingly employing individuals without proper work authorization. Employers should promptly seek the advice of experienced legal counsel upon receipt of a no-match letter.
(3) Document the investigation regarding the no-match letter. Documenting conversations with the employee in question, as well as any other steps taken to investigate a no-match letter, will be helpful for an employer in the event of an ICE audit or a discrimination complaint from the employee.
Keep in mind that the facts surrounding each no-match letter vary greatly. For that reason, an employer should undertake careful review and analysis of each individual no-match letter. If you have questions about no-match letters or other employment matters, please contact Nyemaster Goode's attorneys at 515-283-3100.