Published in the Portsmouth Herald (9/29/2019)
The Social Security Administration has recently announced it will begin sending no-match letters to employers, and has followed through on its promise. This is not the first time the SSA has initiated issuing no-match letters to employers, which it calls Employer Correction Request Notices (EDCOR).
The SSA first began sending no-match letters in 1993, and since then the practice of doing so has changed and come and gone for a variety of reasons. Most speculate this recent resurrection of no-match letters was in response to the current administration’s Buy American Hire American Executive Order.
Why no-match letters?
The SSA issues no-match letters to employers when the name and Social Security combinations provided on a W-2 do not match. The SSA states the purpose of the letter is to advise employers corrections are needed in order for the SSA to properly post employee’s earnings to the correct record.
Reasons for mismatch.
Some of the reasons names and Social Security numbers do not match are:
-*- An individual does not have a valid Social Security number
-*- Typographical errors (by the SSA, employer or employee)
-*- Inaccurate or incomplete employer records
-*- Name changes that have not been reported
-*- Errors in hyphenated or multiple last names
-*- Identity theft
The no-match letter.
The no-match letter instructs the employer not to take adverse action against the employee such as terminating employment. The letter does not provide any employee-specific information, but instead directs the employer to visit its Business Services Online website, register and retrieve the relevant information. The letter states the employer must file Forms W-2C to correct the mismatch within 60 days.
What to do.
1. Log on to the BSO website, and retrieve the specific no-match information.
2. Review your records to determine if there was a mistake or incorrect information on your W-2 which can easily be corrected. If this is the case, correct your W-2 by submitting a W-2C.
3. If you are unable to easily resolve the mismatch, prepare and send a letter to all identified employees notifying them of the mismatch, and asking them to resolve the mismatch and report their resolution back to you. Make sure to set a reasonable deadline (the SSA letter requires you to resolve the issue within 60 days so leave enough time to do so).
4. Consider meeting with each employee shortly after your letter is provided, to tell them that you have received a no-match letter and reiterate their obligation to resolve the mismatch with the SSA. Be sure to have more than one employer representative present at any meetings. Be sure the meeting is documented.
5. Continue to give the employee regular reminders that he or she must resolve the mismatch. Be sure to document your communications.
6. If at any point, the employee admits he or she is not authorized to work in the U.S., you must terminate the employee.
7. Once you have taken all necessary steps, you must determine how to proceed with employees who are unable to resolve mismatches. Make sure to confer with legal counsel before doing so.
8. Additionally, you should communicate your resolution to the SSA to show it you have complied with its letter.
What not to do.
-*- Do not ignore the no-match letter. Doing so could lead ICE to believe you knowingly violated immigration laws
-*- Do not immediately terminate identified employees. Doing so could be considered discriminatory.
-*- Do not ask the employee to provide you with specific documentation. Doing so could be considered discriminatory.
-*- Do not prepare new I-9s for just the identified employees. Doing so could be considered discriminatory.
-*- Do not ask employees for information about their immigration status, country of origin or other similar information. Doing so could be considered discriminatory.
How to avoid no-match letters and violations.
It is essential to have procedures in place to comply with employment and immigration, and doing so is no easy task. The best place to start is by ensuring I-9 compliance. Be sure to have I-9 procedures in place; train your HR professionals in completing I-9s, and conduct regular internal I-9 audits. Having these measures in place can help minimize the potential of many different types of liability. Make sure employment handbooks are in place and address policies and procedures for mismatches and related issues.
Shiva Karimi is managing director of McLane Middleton’s Boston office and a member of the firm’s Immigration Practice Group. Her practice focuses on business immigration law. She advises employers and employees in developing creative and effective strategies for temporary and permanent immigration solutions. She also counsels employers in immigration compliance matters and assists employers in responding to audits and investigations. Karimi can be reached at (781) 904-2690 or [email protected].