Social Security Administration’s “No-Match” Letters Are Back

By Kamer Zucker Abbott

August 1, 2019

The Social Security Administration (SSA) is once again sending employers notification when names and social security numbers (SSN) submitted on W-2 forms do not match SSA’s records. Use of such “no-match” letters stopped in 2012, but have now been reinstated by the Trump administration, with one key difference. The new no-match letters will not identify the names of the employees at issue; they will only notify the employer that a certain number of no-matches exist. Employers will need to use the SSA’s Business Services Online (BSO) to find the names at issue.

Employers must exercise caution when responding to no-match letters. Ignoring the receipt of no-match letters is very risky because the Department of Homeland Security (DHS) and Immigration Control and Enforcement (ICE) could regard an employer’s failure to act as evidence of constructive knowledge of an employee’s unauthorized work status. Indeed, DHS and ICE take the position that receipt of a no-match letter creates an affirmative duty to investigate the reason for the discrepancy. On the other hand, an employer risks a claim of national origin discrimination if it takes adverse action against an employee because of a no-match letter. The SSA’s letter specifically warns employers of such potential liability and cautions that the no-match letter “does not imply that [the] employee intentionally gave the government wrong information about the employee's name or SSN” or “address [the] employee’s work authorization or immigration status.”

Employers with unionized workforces have additional issues to consider as many unions maintain that an employer’s response to no-match letters is a mandatory subject of bargaining. A union may want to negotiate over the employer’s response, demanding to receive copies of no-match letters and to meet with the employer before any action is taken. In addition, some collective bargaining agreements (CBAs) have provisions directly addressing no-match letters and/or immigration issues, including language providing employees with the right to a leave of absence to resolve such issues.

So, what steps can and should employers take upon receipt of a no-match letter? While there is currently no governmental guidance or body of applicable regulations to provide definitive rules to follow, we can offer the following suggestions:

1. Use the SSA’s BSO to find the names of the employees with mis-matched social security numbers.
2. Review your internal personnel records, starting with your W-4 submissions, pertaining to the employees at issue for clerical errors (e.g., typographical errors, transposed numbers, misspellings, errors with hyphenated or multiple last names) and name changes due to marriage, divorce, or adoption.
3. If no error is found in your internal records, notify the employee in writing and request confirmation that the social security number given is correct. You can also ask if the employee’s name has changed or is properly hyphenated. If the employee is represented by a union, determine whether you have an obligation to notify the union of the no-match and review any applicable CBA provisions.
4. If the reason for the no-match is not found, direct the employee, in writing, to contact the SSA to resolve the discrepancy, consistent with any applicable CBA provisions. Give the employee a reasonable time to resolve the situation and ensure him/her that his/her employment will continue during this time. If your employee is entitled to leave under your policies or a CBA, let him/her know about this benefit. There is no official guidance as to how much time to give an employee to correct a no-match, but, in the absence of a CBA obligation, conventional wisdom suggests that 90-120 days is reasonable.
5. Employees who abandon their job, never return from leave, or admit falsification may be discharged pursuant to your employment policies. Also, if after a reasonable time, an employee has not resolved the discrepancy, you can consider discharge upon careful review of all the facts and circumstances, including the discharge provisions of any applicable CBA.
6. Thoroughly document the steps you take in responding to a no-match letter, noting the date and person taking each particular action.

This is a complicated area for employers with no specific regulations to follow. If you have questions about responding to SSA no-match letters, contact a KZA attorney to work through your options.