By Kathleen J. Jennings (firstname.lastname@example.org)
Since March 2019, the Social Security Administration (SSA) has sent out approximately 575,000 Employer Correction Notices, generally known as “No-Match” letters. What is a “No-Match” letter? It is a letter from the SSA informing an employer that it has at least one employee whose name and Social Security number combination on a filed W-2 do not match SSA records. The letters inform employers that they need to take corrective action but warn them not to “use this letter to take any adverse action against an employee.”
In a new twist, the recently sent letters instruct employers to register for the agency’s Business Services Online. This raises some concerns about whether SSA will share online information with other federal agencies, such as ICE. For now, however, SSA says that such sharing is not likely because data from W2s is tax information and disclosure is governed by the Internal Revenue Service.
What should an employer do if it receives a No-Match letter for one of its employees?
- First, check your employment records to see if there is a typographical error. Did someone input a number incorrectly?
- Second, if there is no error on the employer’s part, then the employer should inform the employee of the situation and ask the employee to bring his/her social security card to an HR representative for verification. The HR representative should document the meeting and make a copy of the card.
- Third, if the social security card matches the information on the No-Match letter, the employer should direct the employee to resolve the situation with the SSA. This should be done in writing.
- While not required to do so, an employer may schedule (and document) periodic meetings or other communications with the employee during the resolution period to keep abreast of the employee’s efforts to resolve the no-match, and to determine whether the employee needs more time to resolve the no-match than initially contemplated.
Employers should not jump to conclusions when they receive these letters. If an employee’s name and SSN don’t match SSA’s records, this does not necessarily mean the employee is not authorized to work. There are many possible reasons for a no-match letter, many of which have nothing to do with an individual’s immigration status or work authorization. Because of this, an employer should not assume that an employee referenced in a no-match letter is not work authorized and should not take adverse action against the referenced employee based on that assumption. Such action could subject the employer to liability for discrimination under the antidiscrimination provision of INA. When in doubt, consult with counsel.
Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at email@example.com.
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