The SSA resumed the practice of issuing Employer Correction Request Notices (AKA “no-match letters”) late last year. These letters notify an employer when the information submitted on an employee’s W-2, such as the SSN, does not match the SSA’s records. Receipt of a no-match letter should trigger an employer to take a number of actions and, just as importantly, to refrain from doing certain things.
I am currently assisting several clients work through the process of dealing with one or more no-match letters. The process is not extremely complicated, but there are several points at which an employer can create liability for themselves. The Department of Justice has provided us with a handy list of Dos and Don’ts to use in this process.
- Recognize that name/SSN no-matches may be the result because of simple administrative errors by the employer or the SSA.
- Check the reported no-match information against your personnel records. Often, the error is due to a typographical error. If you discover an error, you can submit a corrected W-2c.
- Inform the employee of the no-match notice.
- Ask the employee to confirm his/her name/SSN reflected in your personnel records is correct. (If the employee admits that the number is fraudulent and that they are not legally authorized to work in the U.S., they will probably need to be terminated.)
- Advise the employee to contact the Social Security Administration (SSA) to correct and/or update his or her SSA records.
- Give the employee a reasonable period of time to address a reported no-match with the local SSA office. This will usually be between 60 to 120 days. However, an employer may be justified in immediately taking an adverse action against employee if she flatly refuses to make a good faith effort to address the discrepancy.
- Follow the same procedures for all employees for whom you receive no-match letters regardless of citizenship status or national origin.
- Periodically contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match. You will want to be able to show that you follow up.
- Review any document the employee chooses to offer showing resolution of the no match.
- Submit any employer or employee corrections to the SSA
- Ignore the letter.
- Assume the no-match conveys information regarding the employee’s immigration status or actual work authority. (Receipt of a no-match letter alone does not constitute knowledge that the employee is not eligible to work in the U.S.)
- Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee. (However, if the employee admits that they are not legally eligible to work in the U.S., or you receive other evidence to that effect, you may be liable if you continue to employee the person.)
- Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
- Follow different procedures for different classes of employees based on national origin or citizenship status.
- Require the employee to produce specific I-9 documents to address the no-match.
- Require the employee to provide a written report of SSA verification (as it may not always be obtainable).
If an employee is unable to provide a satisfactory resolution within the time that you have allowed, you will find yourself in a difficult situation of having to decide whether to terminate the employee without further action, reverify the employee and terminate only if successful reverification is not possible, or continue to employ the person without further action. Unfortunately, we do not have clear guidance from any federal agency regarding what employers can or should do ins such a situation.
Be careful if an employee provides you with a new SSN. You should consider verifying the new number with the SSA using the SSNVS system (https://www.ssa.gov/employer/ssnv.htm) Accepting a new SSN without some verification would open the employer to a charge that it knowingly employed a worker that was not eligible for employment. At a minimum, you should document the explanation given by the employee for the new SSN and proceed to employ the person with the new SSN only if the explanation seems credible.