SSA's No-Match Letters Resurrected: What Should You Do If You Get One?

Famed lawyer Clarence Darrow once said, "History repeats itself, and that's one of the things that's wrong with history." Wrong or not, the Social Security Administration has started repeating itself by again issuing "no-match letters." Also known as "mismatch letters" or "Employer Correction Requests," they notify employers that employee information received from an employer does not match SSA records.

In this era of immigration law limitations coupled with record-high domestic employment, employers already may be on heightened alert concerning new employees and their immigration status. Here, we provide guidance about how to respond to this latest incarnation of the no-match letter.

Actions to Avoid

First, employers should not overreact. Numerous innocuous reasons can trigger a mismatch letter, such as inaccurate employee records, typographical errors or a name change. The SSA will not assume that an employer or employee intentionally provided inaccurate information; employers should not either.

Second, the letters themselves do not address an employee's immigration status or work authorization. Employers risk facing discrimination suits if they take adverse employment action (like suspension or termination) based solely on the letter.

Third, no-match letters should not provoke an employer to require employees to complete new I-9 forms or begin running searches on E-Verify. Even these actions – based solely on the letter from the SSA – can put an employer at risk for a discrimination claim.

Actions to Take

To be clear, while employers should not overreact, the letters also should not be ignored. If it turns out that an employee at issue is illegally in the country, doing nothing can be interpreted as evidence that the employer had knowledge of its employee being unauthorized to work in the United States.

In the space between overreaction and doing nothing, employers should do the following:

1. Check Employer Records. Cross-reference the names on the mismatch letter to internal records, and note the names and Social Security numbers provided on employee W-4 forms. Employers should look for innocent mistakes and, if any are found, make corrections online via Form W-2c.
2. Review Company HR Policies. Go ahead and review internal human resources policies and procedures about employee honesty. Do you have a written policy that provides for termination if an employee provides false information? If not, consider implementing one. Employers should be sure to check for any prior enforcement of applicable policies if it turns out that the employee has provided false information. Additionally, employers should make sure they have policies in place covering the job application process to mitigate the likelihood of any issues. Consider including a clause in applications for a potential employee to affirm that his or her information is provided truthfully, that he or she is authorized to work in the United States, and that any omission is grounds for termination.
3. Notify the Employee. Next, employers should notify any employees identified in the no-match letter. Ideally, notify those employees in individual meetings within 30 days of receipt of the letter. If an employer has many mismatches with which to deal, consider notifying employees on a staggered basis within the 30-day window to avoid negative impact to business operations if employee terminations are necessary. An employee should be given a reasonable amount of time to update his or her information, which may be as many as 90 days to go through the process of getting a new SSN.
4. Be Prepared to Take Action on Any Information the Employee Volunteers. Take notes on the meetings with employees. If you learn from an employee about his or her undocumented status or lack of authorization to work in the United States, be prepared to terminate his or her employment immediately. Employers who knowingly employ unauthorized persons can face fines per unauthorized employee or be individually liable and face jail time. Those are serious consequences, and employers should take steps – and document those steps as noted below – to avoid them. If an employee's information was inaccurate at the time his or her documents were submitted, but the employee now possesses accurate information, termination is not required. Companies should follow their internal policies about honesty and termination, and employers should be mindful of policy uniformity to avoid discrimination claims.
5. Keep a Chart of Notices and Timelines. Track the dates of meetings and when employees are given notice about the mismatch letters. Employers also should keep records of their efforts to rectify any issues.
6. Respond to the Social Security Administration. After reviewing the no-matches on the SSA website and taking steps to address and mitigate the situation, employers should file a Form W-2c to inform the SSA of corrections to the employee's SSN or name. If an employee requires a correction, it is a best practice to demonstrate a good-faith effort to address the issue by sending a letter to the SSA relaying the status of the identified employees. Employers should include information like an employee's termination, corrections made to an employee record or an employee being asked to contact the SSA to correct an issue.

Less-famous English barrister Philip Guedalla said, "History repeats itself. Historians repeat each other." So as not to be mistaken for historians in this new age of no-match letters redux, we simply stress that employers should avoid overreacting. Ignoring the letters is bad as well. Employers should give the issues some thought before any letters from the SSA arrive and be prepared to respond appropriately.

For more information regarding handling the SSA's mismatch letters, or for assistance updating employment policies, human resource materials or application documents, please contact a member of Robinson Bradshaw's Employment and Labor Practice Group.

This article was prepared with the assistance of Atiana J. Johnson, a rising 2L student at Howard University School of Law.