Many employers still recall opening a letter from the Social Security Administration (SSA) informing them that the name or Social Security number (SSN) reported on a recent wage report does not match a name or SSN in the SSA’s records. At times the letter listed numerous individuals with a mismatch. The question for employers was what to do and when to do it. The answers were not always clear.
So, the question of what to do and when upon receiving a no-match letter will again arise very soon. The guidance on what an employer must do is provided in the SSA’s Frequently Asked Questions about no-match letters. What must be done is relatively clear. The first step is to try “to confirm that a reporting or input error is not the cause of a no-match.” To do this, the employer, in conjunction with the employee, should try to confirm that the name and SSN submitted correctly reflect the employee’s name and SSN. This can be accomplished by a brief meeting with the employee to review the relevant documents. If no error in the information is apparent, the employer should refer the employee to the local SSA office to attempt to resolve the no-match. The step of attempting to confirm apparent errors in name or SSN should occur relatively quickly after receipt of a no-match letter. While no specific time frame is mandated, an employer wants to act reasonably to such a government notice in case questions arise later regarding the employer’s conduct and whether they employed someone that was not authorized to work.
One of the more frequently asked questions involving such letters is what causes a mismatch. There are a variety of possible causes, including simple reporting errors by an employer or employee. The error may merely be transposed numbers, missing numbers, name errors or typing errors. In some cases, the mismatch results from input errors by SSA staff. It may also be the result of serious misconduct such as identity theft or fraud. A name change by the employee, usually because the employee recently married, is usually a more common cause of a no-match letter. Employees that have hyphenated last names also seem to receive no-match letters more frequently. Ultimately, the discrepancy must be resolved.
If it is a simple errant recording the employer can correct its records and submit Form W-2c, a Corrected Wage and Tax Statement. Sometimes employees merely quit or fail to respond when confronted about the mismatch by the employer. On some rare occasions an employee will admit to being unauthorized to work. The only reasonable employer response at that point is immediate termination. And in some cases, an employee may claim that after checking with SSA, they are unable to explain the discrepancy. Here an employer can either risk continuing to employ the individual or terminate employment and hope that no viable legal complaint is raised.
A no-match letter is not evidence that an employee lacks work authorization. It is clear that a no-match letter, in and of itself, cannot constitute “constructive knowledge” of lack of work authorization. Only the Dept. of Homeland Security (DHS) can make such a legal conclusion, which usually involves a totality of the circumstances review. If an employer were to rely upon the no-match letter as a basis for taking adverse action against the employee at issue, it could violate the anti-discrimination rules of the Immigration and Nationality Act.