How to Handle a “No-Match” Letter from SSA
By Kelly A. Hayden, JD, Chief Legal Counsel
Published April 9, 2019
During the early and mid-2000s, “no-match” letters (letters informing an employer that an employee or certain employees’ Social Security numbers [SSNs] did not match the Social Security Administration’s records) were common. In 2012, the Obama Administration decided to end the practice. Recently, the Trump Administration indicated that it would once again begin mailing the letters to employers.
The letters certainly put employers in a bind. While the letter itself states “[y]ou should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because his or her SSN or name does not match our records” and “[a]ny of those actions could, in fact, violate State or Federal law and subject you to legal consequences,” a failure by an employer to address the letter could be seen as constructive knowledge of immigration violations should the employer be subject to an audit by U.S. Immigration and Customs Enforcement. (No-match letters and an employer’s response to them are routinely requested in audits.) Employers also risk fines from the Internal Revenue Service should they continue to report wages under a SSN they know to be invalid. So what is an employer to do upon receipt of such a letter? Consider the following.
- Review records and talk to the employee. There are other reasons for a no-match than an immigration issue, including transposed numbers, identity theft, etc. If the number was misreported, inform the SSA. For any other reason, advise the employee to take up the issue with the SSA. However, the employer should underscore that refusal to do so and to provide a credible explanation for the discrepancy could be grounds for termination. Document your conversation and follow up with the employee in writing.
- Do not bring up the employee’s immigration status/national origin. It’s not about that, it’s about straightening out a discrepancy with the SSA. At this point, the employee should not be terminated, suspended, or otherwise disciplined, asked to fill out a new I-9, asked to produce I-9 documents, or asked to provide anything from the SSA. The employee should be given a reasonable period of time to straighten out the issue. Although “reasonable” is not defined by any regulation, typically 120 days is recommended. (This may be extended at the employer’s discretion if the employee produces documentation that indicates the employee is pursuing a correction in good faith.) Employees should not be “cherry-picked” when it comes to no-match letters. All employees for whom you receive no-match letters should be treated the same way.
- Follow up with the employee during the process to remind them of the 120-day timeframe. These follow ups should merely constitute “reminders” to the employee and not requests for status reports or any behavior that could be construed as harassment. Document that the employee was reminded.
A myriad of other issues can arise when a no-match letter is discussed with an employee, from employees who admit that they are working illegally to employees who come back in a few weeks with a completely different name and/or Social Security number to employees who do not respond to the employer’s request to resolve the SSN no-match situation. An employer’s actions following any of these and other situations are fact-specific and should be discussed with legal counsel. For help with the various twists and turns that can arise when a no-match letter is received, members should contact the HR Source legal team at 800-448-4584 or email us firstname.lastname@example.org.