Employers should never automatically assume an employee with a reported mismatch is an undocumented alien.
What to do when you receive a "no match" letter
What should you do if you receive a "no match" letter regarding one of your dairy employees?
The Social Security Administration (SSA) sends an employer a no-match letter when its records don’t match the Social Security information that was submitted, casting doubt on the employment eligibility of an employee.
Attorney Anthony Raimondo offers this advice:
- Verify your records. Compare the employee’s Social Security number with your records. If your records do not match the W-4 form, correct the W-4 form and report the correction to the SSA. Maintain copies of correspondence when submitting corrected information to the SSA.
- Notify the employee of the discrepancy. If a check of your records shows you’ve been reporting the number as provided by the employee, inform the employee that the SSA has notified you of a problem and that he or she must resolve it with the SSA. Tell the employee to report the correct information to you once it has been resolved with the SSA.
"While not required, you should impose a deadline that allows a reasonable amount of time [90 to 120 days] to resolve the problem, since the employee may need to obtain a new Social Security card," Raimondo says.
- Confirm your instructions in writing. Write a letter directing the employee to resolve the issue with the SSA and asking the employee to provide updated information, and include it with the employee’s paycheck. Retain a copy of the letter for your records. Maintain a list of the names of employees who received written instructions. "Remember, you must continue to pay payroll taxes for each employee, regardless of any mismatch," Raimondo adds.
- If the employee comes back to you with new information, correct your payroll records and send a letter to the SSA, notifying the agency of the correction.
- If the employee returns with new information, such as a new name and/or Social Security number, you may need to follow up further to avoid having "constructive knowledge" of a lack of authorization. A new alien registration number should be considered suspicious.
- If the employee does not return with corrected information, do not try to re-verify his or her authorization to work in the U.S. or automatically fire the employee. Instead, warn the employee that termination may follow if he or she doesn’t respond in 90 days, then suspend without pay with a warning that termination will follow if the issue is not resolved in another 30 days.
"The law is not clear on whether the employer must impose a deadline," Raimondo says. "While there is some difference of opinion on the issue, my opinion is that employers who impose a 90-day deadline are in the best position to defend themselves from immigration law violations."
- If you choose not to impose a deadline and don’t receive corrected information by the end of the tax year, send a letter to the employee stating: "On [date], we notified you that the SSA had advised us of a name/number mismatch in the agency’s records of your account. We suggested that you go to the local SSA office to straighten out the problem. Please let us know if any of the information in our records needs to be changed." Enclose a W-4.
Send another letter with the same warning at the end of the next tax year if the employee does not provide corrected information. Once you have requested an update in two successive tax years, you do not need to ask again. Having employees submit a new W-4 on an annual basis as a matter of policy will serve as an annual solicitation for their correct Social Security number.
- If the employee used a questionable Social Security number on his or her I-9 form, re-verify the I-9, but do not accept any document with the questionable Social Security number unless and until the mismatch is resolved.
- Establish company policy and apply it consistently.
- Do not terminate automatically. Employers should never assume that an employee with a reported mismatch is an undocumented alien. "You should never fire an employee because of a mismatch letter," Raimondo says.
- However, employers cannot ignore information they receive when following up on mismatches. For example, if an employee admits undocumented status, that employee must be terminated immediately. Immigration law prohibits employers from continuing to employ workers they know to be undocumented.
If an employee repeatedly fails to correct a mismatch, the situation becomes a matter of employer policy.
"If the employer has a policy of terminating for failure to provide accurate information or has imposed a deadline, then the employee should be terminated for failure to provide accurate information on hire or for blowing the deadline," Raimondo says. "But such a policy must be enforced consistently. Otherwise, the employer can continue to employ the individual but must be aware that it may not be possible to terminate others who have the same issues."
- February 2012