Social Security Mismatch and Immigration Obligation

February 3, 2011 09:15 AM

By: Anthony P. Raimondo, attorney

Notification that an employee’s name and Social Security number (SSN) do not match can come in many forms, including a “no match” letter from the Social Security Administration (SSA), a garnishment or even a complaint from a third party who claims his or her SSN has been stolen.

Employers must be aware of their legal obligations when they receive notice that an employee may be using a SSN that is not his or her own.

Employers may not hire or employ individuals who they know are not authorized to work in the United States. “Knowing” includes both actual knowledge and “constructive knowledge,” which exists when an employer should know that the employee lacks legal status.

A mismatch notification alone is not a basis for constructive knowledge because there are many reasons for a mismatch that have nothing to do with immigration status. For example, a woman who fails to legally change her last name after marriage but starts using her husband’s name could trigger a mismatch. Employees may use false SSNs to avoid debts, even if they have legal status in the United States.

In the case of a garnishment notice or a complaint from a third party, the employer has no way of knowing whether or not the disputed SSN belongs to the employee or someone else.

Employers cannot ignore SSN mismatches. First, employers are obligated by tax law to use “due diligence” to provide correct payroll tax information to the government. Ignoring a mismatch could result in IRS fines. Second, employers cannot turn a blind eye to the possible immigration implications of the mismatch. While the mismatch itself is not a basis to terminate, information discovered when following up could lead to an obligation to re-verify an I-9 or even terminate the employment.

Regardless of how the mismatch came to light, employers should follow the procedure below.

1. Verify records. Compare the employee’s SSN with his or her records. If the records do not match the W-4 form, correct the W-4 and report the correction to the SSA. Maintain copies of correspondence submitting corrected information to the SSA.

2. Notify the employee of the discrepancy. If the business has been using the number provided by the employee, inform the employee that there is a problem with the SSN and that he or she must resolve it with the SSA. Tell the employee to report the correct information once it has been resolved. Do not give the employee a deadline to report the information unless the policy is to discharge employees who fail to provide corrected information. If a deadline is imposed, it must allow a reasonable amount of time to resolve the problem.

3. Confirm 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 his or her paycheck. Employers must continue to pay payroll taxes, regardless of any mismatch.

If the employee returns with new information, employers should correct their records and notify the SSA of the correction. If employers do not receive corrected information by the end of the tax year, they should send a letter to the employee asking him or her to complete a new W-4 with the corrected SSN. Under IRS policy, once employers have requested the update in two successive tax years, they do not need to ask again. As a matter of policy, having employees submit a new W-4 on an annual basis serves as an annual solicitation for the correct SSN.

If the employee does not return with corrected information, do not automatically fire the employee or re-verify the I-9 unless the employee used the questionable SSN on the I-9. In that case, re-verify but do not accept any document with the questionable SSN unless and until the mismatch is resolved.

4. Establish company policy and apply it consistently. Employers must establish and implement a policy and procedure for responding to mismatch letters and to maintain records of responses to mismatch letters. The policy must be applied consistently to all employees in order to avoid claims of discrimination.

5. Do not terminate. Employers should never assume an employee with a reported mismatch is an undocumented alien, and should never fire an employee solely because of a mismatch letter. But employers cannot ignore information they receive when following up on mismatches.

Any employee who admits to being undocumented must be terminated immediately. If the employee comes up with an entirely new identity, employers must demand an explanation. If the explanation is reasonable (such as a legal name change), employers can accept it and should re-verify the I-9. If an employee repeatedly fails to correct a mismatch, company policy will control. If employers have a policy of terminating for failure to provide accurate information, the employee should be terminated for failure to provide accurate information on hire. But such a policy must be enforced consistently. Otherwise, employers can continue to employ the individual but must be aware that they may not be able to terminate others who provide inaccurate personal data.

Establishing procedures to address mismatches consistently must be a part of every employer’s immigration compliance strategy.

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