News & Insights

Fair Labor Standards ActJuly 10, 2019by Stanton LawSocial Security Administration Revives No-Match Letters

by Emily Gaston.

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Employers should be aware that the Social Security Administration (SSA) has recently reinstated the practice of issuing Employer Correction Notices, also known as “no-match letters.” If this is your first time hearing about the revival, consider yourself lucky and keep reading. No-match letters are not a new practice for the SSA; they first started sending the notices in 1993. However, the no-match letters that employers could receive in 2019 will look different than those from prior years.

Officially, the SSA issues the no-match letters to correct its database and to ensure employee earnings are accurately credited to their Social Security records. From the beginning, employers weren’t certain how to address the letters or whether they would be construed as evidence of unauthorized employment. Inevitably, the confusion led to litigation and repeated attempts by Congress to modify the mandate. As a sign of administrative morass, the practice of sending no-match letters has been suspended and reinstated several times over the decades, with the last suspension in place since 2012.

As of March 2019, the SSA confirmed it had resumed issuing no-match letters, with additional steps for employers and a persistent lack of clarity on compliance and enforcement. The 2019 no-match letters will state “Employer Correction Request Notice” at the top and will not provide any employee names on the notice. Employers are instructed to make necessary corrections within 60 days of receiving the letter. For the employer to determine which employee’s information needs to be reconciled, they must register an account with the SSA’s Business Services Online (BSO).

The receipt of the notice does not necessarily mean the employee is not authorized to work in the United States. Further, receipt of a no-match letter does not indicate that the employee intentionally provided incorrect information. Do NOT assume the notice conveys information regarding the employee’s immigration status or actual work authority. Do NOT use the receipt of a no-match letter to take adverse action against an employee, such as laying off, suspending, firing, or discriminating against the individual.

Differences in the records can occur for a variety of reasons, including typographical errors, unreported name changes, or incomplete employer records. The employer must attempt to resolve the no-match by taking consistent and non-discriminatory steps for each identified employee. Additionally, employers should document all steps taken to comply with the no-match requirements.

To further complicate matters, Immigration and Customs Enforcement (ICE), as part of an I-9 audit, will now request copies of any SSA no-match letters the company has received. If the employer has simply ignored the letter, ICE may determine the employer has constructive knowledge of the employee’s unauthorized status.

Any adverse employment action based solely on receipt of a no-match letter may violate state and federal laws that prohibit discrimination based on national origin, citizenship, or another protected class. Obvious, these letters create a set of problematic and potentially competing compliance obligations, the specific nature and degree of which may depend on factors specific to each employer’s business.

Upon receipt of a no-match letter, it is wise for employers to contact counsel for assistance understanding their options and obligations. With guidance, they can determine the most appropriate response for their business. Because these letters may impact more than an employer’s wage reporting requirements, employers are advised to create a plan of action and protocols on how they are going to address these new SSA Employer Correction Request Notices (no-match letters), should one ever arrive.

Seek Guidance from an Atlanta Employment Attorney

If you have questions about a no-match letter you have received or aren’t sure how to incorporate this information into your employment practices, don’t hesitate to contact the Atlanta employment attorneys at Stanton Law. We can help you understand your risk and responsibilities as you follow the new regulations and protect your business. The experienced Atlanta business attorneys at Stanton Law are available at 404-531-2341, or visit us online.