The Truth About Social Security No-Match Letters
Reference: Ann Badmus, badmuslaw.com, February 2011
Social Security Administration (SSA) no-match letters notify employers that an employee’s name or Social Security number (SSN) does not match the name or SSN combination in the SSA’s records. These letters have often confused employers as to the employment eligibility of the referenced employee. In 2007, the Department of Homeland Security (DHS) announced a rule that required employers to follow specific steps upon receipt of no-match letter. If an employer complied with the rule, it would avoid liability for unauthorized employment of the employee referenced in the no-match letter. After protracted litigation, the DHS withdrew this “safe harbor” rule. Nevertheless, employers who receive no-match letters must take reasonable measures to steer clear of immigration and labor law violations. The first step is to learn the truth about SSA no-match letters.
A no-match letter does not mean the referenced employee is unauthorized to work. There are many reasons for a no-match in the SSA records which have nothing to do with immigration status or work authorization, including but not limited to, unreported name changes, SSA data entry errors, employer/employee reporting errors, identity theft, misspelling of names, and fraud.
A no-match letter does not create constructive knowledge that an employee is not work authorized. The receipt of a no-match letter or other no-match notice does not, standing alone, constitute the employer’s “constructive knowledge” that the employer is not work authorized. Therefore, employers cannot assume an employee is unauthorized to work and dismiss or suspend the employee solely based upon a no-match letter. If it does so, the employer can be charged with violation of the anti-discrimination rule of the Immigration and Nationality Act (INA). This rule prohibits employment discrimination based upon national origin, citizenship status, or immigration status, document abuse during the employment eligibility verification process, and retaliation.
No match letters are not a part of the E-Verify program. Although both use the SSA databases, there is no relationship between the SSA no-match letters and the E-Verify program. The E-verify program is a service employers may use to verify an employee’s work authorization. The SSA no-match letter is simply a report that an employee’s name and SSN do not match SSA records. To minimize the receipt of SSA no-match letters, employers can use the Social Security Number Verification Service (SSNVS). However, unlike the E-verify program, the SSNVS cannot be used to verify work authorization. Its purpose is solely to verify the name and SSN of employees against SSA records.
Employers must be careful to tread the fine line between employment eligibility verification rules and anti-discrimination rules. Mishandling of SSA no-match letters can lead to violations of both sets of rules.
