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Help! My Company Just Received a "No Match Letter" - How Should We Respond?

Clients have called me recently (with increasing frequency) seeking legal advice on how to respond to the "no match letter" that they suddenly received in the mail from the Social Security Administration. It is a two page letter entitled "Employer Correction Request."

NUMBER OF EMPLOYEE NAMES AND SSNs THAT DO NOT MATCH: This Employer Correction Request letter (which is often referred to by legal analysts as the "no match letter") starts out with a section saying "Why You Are Getting This Letter." It informs the recipient about how many employee names and Social Security Numbers (on the W2 forms the employer provided) do not match the records of the Social Security Administration (for a certain specified tax year-the recent letters that clients are getting from the Social Security Administration are for the 2018 tax year).

CORRECTED INFORMATION NEEDED TO PROPERLY CREDIT EMPLOYEES' EARNINGS: The "no match letter" announces that the Social Security Administration needs "corrected information" so that it can "properly credit" the employee's earnings to the employee's Social Security records.

The "no match letter" explains that the employee lacking correct information may not get the benefits that he/she may be entitled to in the future (such benefits as social security, retirement, disability, survivor benefits, etc.).

POSSIBLE REASONS FOR NO MATCHES: The "no match letter" offers the possible reasons why the specified employees' names and Social Security Numbers may not agree with the records of the Social Security Administration, reasons such as typographical errors, unreported name changes, and inaccurate or incomplete employer records.

NO ONE IS BEING ACCUSED: The "no match letter" reassures the recipient that the employer and the employee are not being accused of intentionally giving the Social Security Administration wrong information about the employee's name or Social Security Number.

NO ASSUMPTIONS SHOULD BE MADE ABOUT IMMIGRATION STATUS: The "no match letter" carefully clarifies that the "no match letter" does not pertain to the employee's work authorization or immigration status. Therefore, employers should not make any assumptions about the immigration status of the specified employee.

NO ADVERSE ACTION SHOULD BE TAKEN SOLELY ON BASIS OF NO MATCH: This Employer Correction Request letter (i.e., "no match letter") further warns that the employer should not use the letter to take any adverse action against the employee such as laying off, suspending, firing, or discriminating against that employee just because his/her Social Security Number or name does not match the records of the Social Security Administration. So...the employer cannot take punitive action of any kind against the specified employees merely because they are listed in the "no match letter."

The "no match letter" actually warns the employer that if the employer takes any adverse action against an employee based on the Employer Correction Letter (i.e., "no match letter"), the employer may be found guilty of violating State or Federal laws and therefore may be subject to "legal consequences."

LETTER SUGGESTS WHAT EMPLOYER SHOULD DO: The "no match letter" suggests that the employer should go online to use the Employer Report Status within the Business Services Online (BSO). In order to use this BSO system, the employer has to complete a one-time registration process (a link is provided for that purpose).

The Social Security Administration tells the employer that the employer can file corrections online to the W-2 forms at issue. There is also a Social Security Number Verification Service that employers can use for free.

The "no match letter" asks that the employer review the name and Social Security Number information that the employer submitted on the W-2 form for each employee and provide the Social Security Administration with the necessary corrections for each employee on the Form W2-C within 60 days of receipt of the "no match letter" from the Social Security Administration.

EMPLOYERS ARE CONCERNED ABOUT WHAT ACTIONS TO TAKE: Many employers fear answering the "no match letter" and really do not know how to move forward. The Social Security Administration appears to be issuing a great many "no match letters" to employers across the United States. While it is clear that the issuance of the "no match letter" triggers a legal duty upon employers to take action, employers are concerned about what actions they should actually take.

Many employers understandably worry that the employees at issue may lack the legal right to work in the United States, but the employer does not know that for sure-it's just an educated guess.

Employers can be fined, and sometimes criminally prosecuted, if they knew or should have known that the persons they employed lacked legal work permission. On the other hand, employers cannot discriminate against their employees on the basis of citizenship status, national origin, or because they are identified as no matches.

Employers must however communicate with the no match employees and ask that they provide correct information within a reasonable period of time.

Employers worry that if many of the employees indeed lack the legal right to work, the no match employees will "disappear" and cause the employer to have a serious crisis where they lack sufficient employees to run the business.

It is clear that employers shouldn't terminate employees without attempting to resolve the issues raised in the no match letter. Also, employers should not treat employees differently based upon the "no match letter," national origin, perceived citizenship status or other prohibited bases.

CONCLUSION: There is no simple or generic way to address the complex issues presented with the Social Security Administration's issuance of "no match letters." An important first step is for the employer to register online with the Social Security Administration as instructed, commence investigation of alleged discrepancies and respond appropriately. The specifics of an "appropriate" response will depend on a variety of factors, including the particular circumstances a given employer faces.

In addition to complying with applicable Social Security Administration directives, an employer's strategy must take into account governing employment and immigration laws, but also with an eye to the business reality of needing to maintain an operational workforce. Given the numerous variables at play in these spheres, an employer will likely find that crafting an appropriate response and strategy will be no easy task.

Lastly, in many cases, employers choose to work with experienced immigration attorneys in formulating the right approach, and in some cases, finding a solution to a particular employee's immigration status problem.

To discuss strategies for handling a "no match letter," please contact Attorney Nancy Joerg at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at [email protected]. If any reader wishes to see a free sample copy of the Social Security Administration's letter, please contact Legal Assistant Tammy Nelson at 630-377-1554 or via email at [email protected].

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