EMPLOYMENT LAW BULLETIN

Vol. 03, No. 2

Courtesy of Eskridge Law, Attorneys at Law

Nearly one in eight employers received a "no-match" letter from the Social Security Administration (SSA) in 2002, advising that an employee's name or Social Security number does not match information in the SSA's records. When sending these letters, the SSA requests that the employer provide correct information within 60 days. This month's bulletin addresses the reasons for the increase in SSA no-match letters and suggests ways of responding to them without risking a lawsuit for discrimination.

First of all, the SSA's increased efforts in this area have nothing to do with the tightening of immigration laws or the emphasis on national security after 9/11. Nor does receipt of a no-match letter indicate that the government has determined the employee is an illegal alien. Rather, the SSA is simply updating its files to ensure that employee earnings are properly credited.

The SSA will not force an employer to respond to the inquiry. However, failure to respond could lead to penalties from the IRS for reporting incorrect information or even fines from the INS for continuing to employ someone who is not authorized to work.

An employer must not assume, however, that employees listed in a no-match letter are illegal aliens and treat them differently from other employees. This could violate anti-discrimination laws. Frequently the explanation for incorrect Social Security information is quite simple - it may be due to a name change after marriage or divorce or even to a clerical error by the SSA itself. The following are procedures for responding to a no-match letter without risking a discrimination complaint:

• Give a copy of the letter to all employees listed and include an explanation in writing that the SSA is simply updating its records and that no adverse action will be taken because of the letter.
• Ask the employees to check their own employment records to determine if their names or Social Security numbers have been incorrectly reported.
• Compare W-2 forms with information the employees provided on W-4 forms when they were hired. The employer should also check its own records for clerical errors in the information it submitted to the SSA .
• Any errors discovered by the employee or the employer should be promptly reported to the SSA.
• Receiving a no-match letter does not authorize an employer to require actual Social Security cards or work authorization documents as this could violate immigration laws.
• If the employee provides a new Social Security number, the employer should not assume that the first was false. Even if there is reason to suspect the employee is not authorized to work, no adverse employment action should be taken without first consulting an employment or immigration attorney.

Eskridge Law, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net). Please visit our web site at www.ealaw.net or www.employmentattorneys.net.

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