NEW
EMPLOYER RESPONSIBILITIES: SOCIAL SECURITY "NO MATCH" LETTERS
The
Department of Homeland Security (“DHS”) has recently issued a final
regulation imposing new responsibilities on employers with respect to “no
match” letters from the Social Security Administration (“SSA”). The
final regulation is effective now.
A
“no match” letter is a notification to an employer from the SSA advising
that an employee’s name or reported Social Security number does not correspond
to SSA records. The new regulation requires employers to take action upon
receipt of a no match letter in order to resolve the discrepancy set forth in
the letter. A failure to do so exposes the employer to fines of up to
$10,000 per incident for knowingly hiring an illegal worker.
DHS
will consider an employer to have responded adequately to a no match letter if
the employer takes the following steps:
The
employer checks its own records to determine if the discrepancy is the result of
the employer’s clerical error. If so, the employer must correct its
records, advise the SSA of such correction, verify that the corrected
information matches SSA records and make a clerical record of such verification.
These steps are to be taken within 30 days of receipt of the no match letter.
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If
the discrepancy is not the result of the employer’s error, the employer
must ask the employee to confirm that the employee’s name and Social
Security number in the employer’s records are correct. If the
employee advises that the employer’s records are incorrect, the employer
must then follow the above procedure to correct, notify, verify and make a
record as to the correction. If, on the other hand, the employee
advises the employer that its records are correct, the employer must
immediately direct the employee to resolve the discrepancy directly with the
SSA. The employer must also advise the employee of the date of receipt
of the no match letter and that the discrepancy must be resolved with the
SSA within 90 days of the employer’s receipt of the no match letter.
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If
the employer cannot confirm with the SSA that the employee’s name matches
the Social Security number in the SSA’s records within the 90-day period,
the employer must complete a new I-9 form for the employee. In this
process (which must be completed within an additional three days following
the 90-day period), the employer may not accept any document that contains
the Social Security number that could not be reconciled with SSA records and
the employee must present an identity document that includes a photograph.
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If
the employer is still not able to verify the employee’s identity and
employment authorization based on the basis of the new I-9 and supporting
documents, the employer must terminate the employee. Failure to do so
at this point could lead to a finding by DHS that the employer has knowingly
employed an undocumented worker.
Employers
who want to avoid the risk of fines under the new regulation should establish
appropriate procedures to implement the steps set out above upon receipt of any
no match letter. However, employers should not take any adverse employment
action solely on the basis of receiving a no match letter. Employers are
also cautioned not to make any presumptions as to an individual’s
authorization to work in this country on the basis of the individual’s
national origin or ethnic background.
Although
the above general information can serve as an important starting point for
employer compliance with the new no match regulation, this information cannot be
relied upon as legal advice. For consideration of your specific compliance
issues, legal counsel should be consulted.
Andrew
S. Williams
330 N. Wabash Avenue
Suite 3000
Chicago
, IL 60611
(312) 755-3145
awilliams@agdglaw.com
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