Social Security “No Match” Letters Return

By Sheri D. McWhorter

We wrote previously on the notorious social security “no match” letters, most recently in response to a controversial rule proposed by the U.S. Department of Homeland Security (DHS) in 2007; this rule would have required employers to take a prescribed set of steps in response to the “no match” letter, lest they face a negative presumption and potential immigration liability. Litigation ensured, the DHS regulation never went into effect, and eventually was rescinded in 2009. During that time, the Social Security Administration (SSA) stopped sending the “no match” letters to employers. Nevertheless, Immigration and Customs Enforcement (ICE) considered (and still does consider) an employer’s receipt of and failure to address a “no match” letter as possible evidence of the knowing employment of an unauthorized worker, and copies of “no match” letters are regularly requested during I-9 audits.

On April 6, 2011, the SSA commissioner issued a directive to resume sending the letters to employers for tax year 2010, however, employers are just beginning to receive the letters, and just beginning to contact us to ask about them.

As most of our readers know, “no match” letters are the much maligned method used by government to notify employers that an employee’s name or social security number may not match the records in the SSA database, or may be otherwise false or misleading. “No match” letters are sent by SSA to employers with employees whose Social Security numbers do not match other government records. The problem may be something as simple as the fact that the employee has married and failed to update their last name with SSA. On the other hand, the problem may be more serious, such as when an employer has hired a worker who is using a fake social security number or a fake name, and is likely not legally authorized to work in the U.S.

The SSA website provides guidance to employers, and tacitly recommends employers treat the “no match” letters more or less as an administrative issue, simply affecting earnings. SSA recommends employers:

- Check employment records to determine whether the information provided to SSA matches those records.

- Check employment records to see whether the employer has a copy of the employee’s social security card on file, and if not, ask the employee to show his or her Social Security card. Important, however, is that the employee is never required to show the card. If the employer and employee are not able to resolve the issue, the employer should ask the employee to contact the local Social Security office for assistance.

- The employer should give the employee a reasonable amount of time to correct the situation.

- If unable to resolve, the employer should document efforts to obtain the corrected information from the employee.

- If the employee no longer works for the employer, the employer should attempt to contact the employee at the employee’s last known address to seek correction.

It is, of course, very important to always keep in mind, as pointed out in the FAQ section of the SSA website:

- A mismatch between an employee’s name and social security number does not mean that the employee lacks work authorization; and

- A mismatch between an employee’s name and social security number does not make any statement regarding a worker’s immigration status.

In addition, on November 19, 2010, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) published revised guidance as to how employers should respond to the “no match” letters. The guidance emphasized that the receipt of an SSA “no match” letter is not a sufficient basis upon which to base a decision to terminate, suspend or take any other adverse action against an employee who is the subject of a “no match” letter.

The return of the “no match” letters also signals the return of the resulting uncertainty for employers as they strive to determine how to properly respond. By working closely with experienced counsel, employers can devise a strategy and uniform procedure for responding to the “no match” letters communicating with affected employees, and working with the employees to hopefully resolve the discrepancy. It is crucial that employers not take any adverse action based upon an unresolved “no match” letter without first consulting employment counsel.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegal SolutionsSM, Law Offices of Sheri D. McWhorter, P.A.  With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides client focused employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.  For assistance, please call 866. 829.1883.