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Apr 5, 2019

Not as Benign as They Seem: SSA No-Match Letters

Jonathan A. Grode

The Social Security Administration (SSA) has resumed notifying employers if the information reported on an individual employee’s W-2 form does not match the SSA’s records by sending them “Request for Employer Information” letters, also known as “no-match” letters.

These letters are relatively limited in content, seemingly innocuous, and often addressed to an individual company’s accounting or HR department. But make no mistake, this letter can open a wide variety of worksite compliance issues, with no straightforward antidotes or solutions, depending on how the employer proceeds. A sample letter can be viewed here.

These “no-match” letters are not a new tactic for the SSA — they initially began sending them in 1993.  At their outset, many employers were distressed as to how to respond to them, and whether they could be construed as knowledge of having unauthorized employees on staff. This concern led to an attempt at clarifying legislation and a wide variety of litigation on the subject. While in 2007, the Department of Homeland Security (DHS) issued a proposed rule, making receipt of a “no-match” letter equivalent to constructive knowledge that an employee is unauthorized, this was immediately challenged by the AFL-CIO and eventually rescinded.

Receiving one of these letters does not necessarily mean that there is any wrongdoing on the part of the employer or employee. The “no-match” may be caused by an administrative error, any number of typos, or unregistered name changes. Employers should be careful not to react drastically in any instance. In fact, the “no-match” letter contains this clear warning to employers not to, stating:

You 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. Any of those actions could, in fact, violate State or Federal law and subject you to legal consequences

Now with the return of the no-match letter, determining how to respond raises new questions as the current federal administration ramps up worksite enforcement efforts. Our current understanding of SSA’s position is that the agency cannot share that information with the Department of Homeland Security (DHS) or Immigration and Customs Enforcement (ICE). Despite the understandable impact of these letters, receipt of one does not necessarily require employees to re-verify or produce specific documentation. Nor do they require immediate resolution with the SSA.

However, receiving one of these letters may prompt prudent employers to do their own I-9 self-audit, as they are frequently requested by ICE after issuance of a Notice of Inspection.

The concern that ICE could learn about the content of the letter during the performance of a workplace investigation adds further complexity to an area of compliance that is already facing a significant uptick in activity and fines. Indeed, the agency recently released its end-of-year statistics in a press release, describing in its own words these activities as a “surge.” Per the DHS press release, there has been a significant increase in worksite investigations, I-9 audits, and other worksite-related arrests as of the end of FY2018 (ending on Sept. 30, 2018), compared to statistics of the previous year. These reported increases average between 300-750% above the previous year’s findings. Most shockingly, this includes a 439% increase in Form I-9 audits compared to FY 2017, a development we have covered at length for our readers.

So, where do the “no-match” letters fit into this “surge” dynamic? Well, we would suggest that they fit within the larger strategy of increased visibility and enforcement. It stands to reason that receiving these letters promotes internal compliance. Looking forward, it is vital that employers devise a method for both maintenance of and response to these letters as well as I-9 compliance in general. Further, it is entirely possible that SSA could look to modify its current policy and begin sharing more information / data with ICE than what it indicates that it currently does.

If you or your employer have any questions or concerns regarding worksite enforcement, please don’t hesitate to contact us

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