search.noResults

search.searching

dataCollection.invalidEmail
note.createNoteMessage

search.noResults

search.searching

orderForm.title

orderForm.productCode
orderForm.description
orderForm.quantity
orderForm.itemPrice
orderForm.price
orderForm.totalPrice
orderForm.deliveryDetails.billingAddress
orderForm.deliveryDetails.deliveryAddress
orderForm.noItems
Legal Ease


No Match Letters – They are In The Mail


By Richard D. Alaniz M


any employers still recall opening a letter from the Social Security Administration (SSA) informing them that the name or Social Security number (SSN) reported on a recent wage report does not match a name or SSN in the SSA’s records. At times the letter listed numerous individuals with a mismatch.


The


question for employers was what to do and when to do it. The answers were not always clear.


They’re Back For the past seven (7) years, no mismatch letters have been issued by the SSA. Unfortunately, they are soon to again be in the mail to many employers. In July 2018, the SSA notified employers that it was resuming the practice effective January 2019. Reviving the policy of issuing such letters goes hand in hand with the dramatically increased use of Notices of Inspection (NOIs), otherwise known as I-9 audits, that we have seen in recent months.


What Can Be Done If You Get a Letter So, the question of what to do and when upon receiving a no match letter will again arise very soon. The guidance on what an employer must do is provided in the SSA’s Frequently Asked Questions about no-match letters. What must be done is relatively clear. The first step is to try “to confirm that a reporting or input error is not the cause of a no-match”. To do this, the employer is conjunction with the employee, should try to confirm that the name and SSN submitted correctly reflect the employee’s name and SSN. This can be accomplished by a brief meeting with the employee to review the relevant documents. If no error in the


98 ❘ February 2019 ®


information is apparent, the employer should refer the employee to the local SSA office to attempt to resolve the no- match. The step of attempting to confirm apparent errors in name or SSN should occur relatively quickly after receipt of a no-match letter. While no specific time frame is mandated, an employer wants to act reasonably to such a government notice in case questions arise later regarding the employer’s conduct in and whether it employed someone that was not authorized to work. The question of how long an


employer should wait for final resolution of the no-match notice before taking action is more difficult. As the SSA guidance notes, there are no regulations that set out any specific time frame or define what would be a reasonable period of time to address and correct information or otherwise resolve the mismatch. They do note that in the E-Verify context, SSA can provide a continuance of 120 days for a tentative non-confirmation of work authorization. That would therefore seem to be the outside limit that might be considered reasonable. When no-match letters were arriving on almost a monthly basis many employers used a ninety (90) day rule of thumb as a reasonable period for lack of more definitive guidance. There are no reported cases where that was deemed to be an unreasonably long period.


What Causes a SSN Mismatch One of the more frequently asked questions involving such letters is what causes a mismatch. There are a variety of possible causes, including simple reporting errors by an employer or employee. The error may merely be transposed numbers, missing numbers,


name errors or typing errors. In some cases the mismatch results from input errors by SSA staff. It may also be the result of serious misconduct such as identity theft or fraud. A name change by the employee, usually because the employee recently married, is usually a common cause of a no match letter. Employees that have hyphenated last names also seem to receive no match letters more frequently. Ultimately, the discrepancy must be resolved. If it is a simple incorrect recording error the employer can correct its records and submit Form W-2c, a Corrected Wage and Tax Statement. Sometimes employees merely quit or fail to respond when confronted about the mismatch by the employer. On some rare occasions an employee will admit to being unauthorized to work. The only reasonable employer response at that point is immediate termination. And in some cases an employee may claim that after checking with SSA, they are unable to explain the discrepancy. Here an employer can either risk continuing to employ the individual or terminate employment and hope that no viable legal complaint is raised. Neither option is the ideal response and probably warrants


consulting with counsel or


other professionals on immigration matters before taking action.


A No Match Letter is Not Evidence that an Employee Lacks Work Authorization It is clear that a no-match letter, in and of itself, cannot constitute “constructive knowledge” of lack of work authorization. Only the Department of Homeland Security (DHS) can make such a legal conclusion, which usually involves a totality of the circumstances


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84  |  Page 85  |  Page 86  |  Page 87  |  Page 88  |  Page 89  |  Page 90  |  Page 91  |  Page 92  |  Page 93  |  Page 94  |  Page 95  |  Page 96  |  Page 97  |  Page 98  |  Page 99  |  Page 100  |  Page 101  |  Page 102  |  Page 103  |  Page 104