The Social Security Administration (SSA) has begun notifying each employer (and third-party payroll company) that has submitted at least one Form W-2 that contains name and Social Security Number combinations that do not match the SSA’s records. These Employer Correction Notices have been commonly known as “No Match” letters. SSA initially began sending “No Match” letters in 1993. However, many employers were confused as to how to address the letters and whether they could be construed as evidence of unauthorized employment, which inevitably led to litigation. The Obama administration ultimately suspended all such letters in 2012.
There are many reasons for SSA to generate a “No Match” letter: input errors by SSA; reporting errors by an employer or employee; identity theft; errors in hyphenated or multiple last names; or an unreported name change. Taking immediate adverse action against the affected employee could give rise to a cause of action under one of several anti-discrimination or immigration related statutes. In fact, the letter contains an explicit warning to employers not to do so. However, taking no action in response to receipt of the “No Match” letter also presents risks. Immigration and Customs Enforcement (ICE) has been conducting more frequent I-9 audits across the country. During the I-9 audit, ICE specifically requests all “No Match” letters from SSA. Failure to provide any evidence of how an employer responded to the “No Match” letter could increase the likelihood of ICE bringing enforcement action, either civil or criminal, against the employer.
Although employers may not be able to avoid receipt of “No Match” Letters, it is important to have good record keeping practices and policies in place regarding such SSA communication. Employers should contact counsel throughout this process to ensure any discrepancies are addressed in a non-discriminatory fashion.
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