In April, the Social Security Administration sent Employer Correction Request letters, also known as no-match letters, to every employer who has at least one Social Security "no-match” — but without specifically naming the employee.
That detail will fall back on the employer to determine if they might have provided incomplete or misplaced information, said John Kran, Michigan Farm Bureau legislative counsel, adding that employers have 60 days to respond — preferably by mail.
“The letters do not provide the names and numbers of the employees that allegedly do not match, as the SSA should be prohibited from disclosing numbers,” Kran says. “That information only comes from the employer by voluntarily logging in to the Social Security Number portal online at Business Services Online to get the actual name of the employee in question.”
The letter suggests employers are required to access employee information through BSO. However, there is no legal requirement to complete this process, says Kim Clarke, an attorney for the Grand Rapids-based law firm Varnum LLP.
More importantly, once an employer accesses the website, employers are legally exposed since they then have direct knowledge of the specific employee with a mismatch, which may be perceived as knowledge of unlawful employment.
While SSA does not have authority over work authorization, Immigration and Customs Enforcement (ICE) has suggested the mismatch creates employer knowledge of a potential lack of work authorization.
However, employers cannot take adverse action based on SSA records, likely cannot resolve a mismatch given current immigration rules and are left with knowledge that may cause liability, Clarke said.
“The only responsibility under the SSA for the employer is to ensure that the records provided to the IRS/SSA match the records provided by the employee, so that accurate deposits are made to the individual SSA accounts. Nothing more,” Kran says.
Kran said that the no-match letter directs employers to:
- Review the names and Social Security information submitted by the employer to SSA.
- Provide any corrections to SSA on form W2-C within 60 days of receiving the no-match.
- Respond to SSA that the employer has confirmed that the names and SSN information provided match the information provided by its employees.
“As with all government reporting requirements, it’s recommended all SSA reports be reviewed to ensure the reports contain the information SSA is seeking,” Kran says. “The report should include the name and SSN as it appears on the SSN card. While employers can’t require the employee to show the card, the employee can be reminded that the information on their W-4’s should match their SSN card name and number. This information may not match other documents provided to the employer for many reasons.”
Additionally, employers are not required to retain the no-match letters in their personnel records. Doing so would create unnecessary risk in the event of a future ICE document audit.
So, does a no-match letter indicate that a worker lacks work authorization or is undocumented?
The answer is no. The no-match letter itself says that it does not make any statement about an employee's immigration status.
According to a 2006 report by the SSA Office of the Inspector General, errors in SSA's database affect both immigrants and native-born U.S. citizens. At the time of the report, the Inspector General noted that out of the estimated 17.8 million records in SSA's database that would generate a no-match letter, 12.7 million (or more than 70% of the records with errors) pertained to native-born U.S. citizens.
An employer, Michigan Farm Bureau advises, cannot and should not terminate a worker based solely upon an SSA no-match letter. The SSA advises employers not to take adverse action against an employee.
Such adverse action may include "laying off, suspending, firing or discriminating against that individual" because his or her information does not match SSA records.
According to the SSA, "Any of those actions could, in fact, violate state or federal law and subject the employer to legal consequences.”
Specifically, taking such adverse actions could violate the Immigration and Nationality Act's anti-discrimination provisions and subject an employer to enforcement from the U.S. Department of Justice and monetary penalties. In addition, an employer could be found liable and subjected to monetary penalties under other state and federal employment laws.
The SSA does not maintain immigration status records and is not an immigration enforcement authority. Therefore, if an employer receives multiple no-match letters for the same worker (using the same SSN), this indicates only that a discrepancy at SSA remains unresolved, not that the worker lacks employment authorization.