Responding to Social Security Number Mismatches: Threading the Needle between Discrimination and Employment-Eligibility Liability

Written: March 7, 2012By Doug HassWith the spring and summer fast approaching, many employers will start hiring additional employees and other temporary workers for the upcoming season.  An upswing in hiring also means that employers may see an upswing in mismatched Social Security Numbers (SSN).  Outside of the hiring context, employers also learn about employee SSN mismatches in other ways, from the Social Security Administration’s (SSA) “no-match” letters to wage garnishment notices, state and local agency inquiries, and even employees themselves.  The penalties for overreacting to or ignoring an SSN mismatch are severe.Employers who have not already done so should consider establishing policies that outline procedures for responding to SSN mismatches.  At a minimum, these policies should address how the employer will respond to employee requests to change an SSN or legal name in payroll or personnel records, and requests or notifications by courts or government agencies about SSN mismatches.  Any policies should also address the employer’s policy for disciplining or discharging employees for obtaining employment using fraudulent documents.  In addition to establishing clear policies, employers can follow some simple steps to respond appropriately to SSN mismatch situations and avoid creating liability to the employee or the federal government.SSN mismatches are frustratingly common, but often innocuous and easily explained.  Whether in the form of a “no-match” letter from the SSA or some other notification, these mismatches do not mean that the affected employee has committed identity fraud, lacks eligibility to work legally, or resides in the United States illegally.  On the contrary, these notifications only mean that the employee’s name does not match the given SSN.  Identity theft or fraud is only one of many possibilities.  In fact, many of the reasons for an SSN mismatch have nothing to do with an individual’s immigration status or work authorization.  Frequently, misreported or unreported name changes, operator error (at the SSA or by the employer or employee), hyphenated names, and difficulties translating or recording ethnic names can all result in an SSN mismatch.  Employers should never assume that an employee is not authorized to work because of an SSN mismatch, and should never require an employee to “reverify” their employment eligibility or take any other adverse action against an employee because it learns of an SSN mismatch.  Such actions could subject the employer to significant liability under the antidiscrimination provisions of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1324b.However, employers cannot simply ignore SSN mismatches without creating possible civil and criminal liability under the INA or other federal and state laws.  Despite its failure to implement comprehensive regulations on how to respond to SSN mismatches, the Department of Homeland Security (DHS) has repeatedly reaffirmed that it may find an employer has constructive knowledge of unauthorized employment based, in part, on how that employer responds to learning of an SSN mismatch.  As part of its increased enforcement efforts, DHS announces new forfeitures, criminal convictions, and civil penalties for employer immigration law violations on an almost weekly basis.  In 2011 alone, DHS initiated nearly 3,300 worksite enforcement cases against employers, arrested 221 employers, debarred more than 300 from doing business with DHS, and issued more than $10 million in fines—all of which represent significant increases over just three years ago.If you learn of an SSN mismatch, regardless of the reason, you can take several steps to investigate and resolve it with the affected employee.  First, look at the employee’s Social Security card and compare its information with the information in your payroll and personnel records.  If the information does not match, then you should simply correct your records and submit the proper corrected W-2, W-4, or other forms to the SSA, the IRS, and other appropriate agencies.  If your records do match the information on the card, you can use the SSA’s Social Security Number Verification Service to verify your employee’s SSN.  You will need to provide your employee’s full name, gender, date of birth, and SSN.  If the SSA verifies that the employee’s number matches, you should advise the employee that someone else may be using his or her SSN, and, if appropriate, share with the employee the relevant information you received.If the SSA’s records do not match the employee’s name to the SSN, your next step should be to discuss the discrepancy with the employee.  Again, given the antidiscrimination provisions in the INA, you should never require the employee to produce additional documentation or accuse them of fraud or other misconduct.  Remember that many of the reasons for an SSN mismatch have nothing to do with immigration status or work authorization.  If, during your conversation, the employee admits that he or she is currently using a fraudulent SSN, and cannot provide a proper SSN or other work authorization due to his or her immigration status, then you can and should discharge the employee.  Employers cannot continue to employ individuals that they know are not authorized to work in the United States.However, if the employee assures you his or her SSN is legitimate you must not take any action against that employee.  Instead, advise the employee to go to the SSA to resolve the issue and to return to you with information about the resolution.  Provide the employee with a letter notifying him or her of the discrepancy and your advice to resolve the issue with the SSA.  You will need to provide a reasonable amount of time for the employee to attempt to resolve the situation.  Neither DHS nor the SSA provides official regulations on the meaning of “reasonable.” As a practical matter, though, since the SSA will grant itself up to 120 days to resolve mismatches in its own databases, you may need to give employees at least 120 days to attempt to resolve the discrepancy.  However, you should follow up periodically with the employee during this time to ensure that they have contacted the SSA and to check on any progress.If the employee returns with a corrected SSN and/or name, then contact the SSA to verify this new information.  If the employee subsequently fails or refuses to follow up with the SSA or does not provide you with information about his or her progress in resolving an SSN mismatch, you should proceed carefully before taking any further action.  Discharging or disciplining an employee based solely on your receipt of a “no-match” letter or some other information indicating an SSN mismatch could still lead to your liability for discrimination under the INA.The Department of Justice Civil Rights Division’s Office of Special Counsel has posted some important “dos and don’ts” and frequently asked questions for employers who receive “no-match” letters from the SSA.  In addition, we have counseled many clients on these issues and can provide employers with detailed policies and suggestions for procedures, as well as assistance with any specific situations or questions.

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