In March 2019, the Social Security Administration (SSA) announced that it would revive the controversial practice of sending “no match” letters to employers across the country, notifying them that an employee’s Social Security number does not match SSA’s official records. Formerly called an “Employer Correction Request Notice,” the letter instructs the employer that it has a certain number of employees whose Social Security numbers do not match the SSA database. It then instructs the employer to login to the SSA’s Business Services Online (BSO) system to view the names of the employee(s) for whom the information does not match and to provide SSA with necessary corrections within 60 days of receipt of the letter to “maintain an accurate earnings record for each employee and make sure your employees get the benefits they are due.”
The innocuous intent of such letters has a controversial history and disproportionate impact on immigrants. This includes previous federal litigation and the Obama administration ultimately suspending the practice of sending such letters in 2012.
Reasons for a “No Match” Letter
Although a “no match” letter suggests that an employee may be using a false Social Security number and may lack proper work authorization or status in the U.S. there are countless other reasons why an employee’s Social Security number may not match the SSA’s records. For example, an individual may have been the victim of identity theft and may have had their Social Security number used by one or more other people. The “no match” may also be a result of pure administrative error or data-entry errors. Or it may be the result of a discrepancy or confusion related to the employee’s name, commonly occurring when a person changes their name (marriage, divorce, name change), uses multiple versions of their name, has a hyphen in their name, or has multiple last names. In fact, according to a 2006 report by the SSA Office of the Inspector General, errors in SSA’s database impact immigrants and native-born U.S. citizens. At the time of the report, the inspector general noted that out of the estimated 17.8 million records in SSA’s database that would generate a no-match letter, 12.7 million (or over 70 percent of the records with errors) pertained to native-born U.S. citizens.
Litigation Finding that a “No Match” Letter is Not Evidence of Constructive Knowledge
Beginning in 1993, SSA sent “no match” letters only to employers with high numbers of mismatches, those who had at least 10% of their workforce not matching SSA records. In 2002, SSA began sending letters to employers whenever there was a mismatch, causing mass confusion and concern related to employment of unauthorized workers and discrimination.
Federal law prohibits an employer from employing an individual who lacks proper work authorization. The prohibition extends to those employers who have actual knowledge that the employee lacks work authorization, and also to those employers who possess “constructive knowledge.” In 2006, the federal government issued proposed regulations to change the definition of “constructive knowledge” to include receipt of an SSA “no match” letter. The regulation included steps the employer could take to correct the employee’s record, which included ultimately terminating the employee if the record could not be corrected within a certain period of time. The final rule was published on August 15, 2007.
In response, multiple employers immediately filed a lawsuit challenging the rule, and on June 16, 2008, the 9th Circuit Court of Appeals ruled that the receipt by an employer of a “no match” letter is not sufficient to establish “constructive knowledge” that the employee is not authorized to work. Consequently, the federal government rescinded the regulation in 2009 and stopped sending such letters entirely in 2012.
What’s an Employer to Do?
Employers who receive a “no match” letter are in a tight bind. On the one hand, they are asked to correct the mismatch within SSA’s database within 60 days and, despite not having constructive knowledge of having unauthorized workers, are at least on notice that this is a possibility. On the other hand, they are at risk of taking actions against employees who may be U.S. citizens or authorized workers, which may lead to discrimination complaints.
In fact, the newest iteration of “no match” letters cautions employers as follows:
IMPORTANT: This letter does not imply that you or your employee intentionally gave the government wrong information about the employee’s name or SSN. This letter does not address your employee’s work authorization or immigration status. You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because his or her SSN or name does not match our records. Any of those actions could, in fact, violate State or Federal law and subject you to legal consequences.
The first question that the employer should consider is whether to take any steps at all. There does not currently appear to be any consequence to ignoring the “no match” letter and failing to login to the SSA’s Business Services Online (BSO) system to identify the impacted employees. In the event that the employer chooses to identify the impacted employees and take any action, the Department of Justice’s Civil Rights Division Immigrant and Employee Rights Section (IER), formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices, provides useful guidance:
- 1. Recognize that name/SSN no-matches can result because of simple administrative errors.
- 2. Check the reported no-match information against your personnel records.
- 3. Inform the employee of the no-match notice.
- 4. Ask the employee to confirm his/her name/SSN reflected in your personnel records.
- 5. Advise the employee to contact the Social Security Administration (SSA) to correct and/or update his or her SSA records.
- 6. Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
- 7. Follow the same procedures for all employees regardless of citizenship status or national origin.
- 8. Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
- 9. Review any document the employee chooses to offer showing resolution of the no match.
- 10. Submit any employer or employee corrections to the SSA.
- 1. Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
- 2. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
- 3. Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
- 4. Follow different procedures for different classes of employees based on national origin or citizenship status.
- 5. Require the employee to produce specific I-9 documents to address the no-match.
- 6. Require the employee to provide a written report of SSA verification (as it may not always be obtainable).
In a separate FAQ, IER notes the following: “[t]here are no Federal statutes or regulations in effect that define a ‘reasonable period of time’ in connection with the resolution of a no-match notice. As a practical matter, a ‘reasonable period of time’ depends on the totality of the circumstances. Of note, in the E-Verify context SSA has the ability to put a tentative nonconfirmation into continuance for up to 120 days. This recognizes that it can sometimes take that long to resolve a discrepancy in SSA’s database.”
Ultimately, employers are encouraged to ensure that they are properly completing the I-9 at the onset of employment, to periodically audit their I-9s for completion and accuracy, and to have consistent policies in place to deal with I-9 issues and in response to SSA “no match” letters. Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you have questions.