Social Security “no-matches” revisited
“Just when I get it figured out, they go and change the rules!”
You've probably felt that way about things like environmental regulations and insurance. Now you can add employment issues to that list as new rules from the Department of Homeland Security (DHS) go into effect.
A recent Dairy Star article (July 14) discussed what employers need to know when or if they receive a letter from the Social Security Administration (SSA) about a “no-match” between an employee's record and their reported social security number (SSN). While that article's information was correct at the time, new rules are now pending based on a California court ruling. Under the proposed rules, employers need to obtain and file corrected information for the employee within 90 days. If the issue is not resolved within 90 days of receiving the “no-match” letter, the employer is faced with two options, neither of which may be very attractive:
- Terminate the employee in question;
- Face the prospect of prosecution and fines for having constructive knowledge of employing undocumented employees.
As before, receipt of a letter does not automatically mean an employee is undocumented and must be released. It only means the records do not match and corrective action must be taken.
There are actions that offer employers “safe harbor protection” from prosecution and claims of discrimination.
How to get “safe harbor protection” under the proposal
To get safe-harbor protection under the new DHS rule, an employer receiving an SSA “no-match” letter must take these steps:
- The employer must check its records to see if the “no-match” was due to a record-keeping error by the employer. If it was, then the employer must correct the error, inform SSA of the correct information, and verify with SSA that the corrected name and number match SSA records.
The employer should document that verification and store that documentation with the employee's Form I-9. The employer must do all of this within 30 days after it received the “no-match” letter.
- If it is determined that the “no-match” was not due to a record-keeping error, the employer must promptly ask the employee to confirm that the name and number in the employer's records are correct. If the employee says they are incorrect, then the employer must do the things specified in step 1.
If the employee says they are correct, then the employer must promptly ask the employee to resolve the issue with SSA and advise the employee of the date on which the employer received the “no-match” letter and to resolve the “no-match” within 90 days of that date.
- If, within those 90 days, the employer cannot verify with SSA that the employee's name and number matches SSA records, then within 93 days after the “no-match” letter receipt date, the employer and employee must complete a new Form I-9 for the employee without using the suspect number but instead use a document presented by the employee that contains a photograph to establish only identity or both identity and employment authorization.
The rule also applies where DHS notifies an employer of a problem with an employee's employment-authorization documentation. The employer has 30 days to try to resolve the issue with DHS. If it cannot do so within 90 days after it received the DHS notice, then the employer must re-verify the employee's identity and work authorization as specified in step 3.
Employers can also register to use an online system to verify SSNs at. Regardless of the method used, an employee's SSN must be on file within 3 days of starting work. Failure to complete this step may result in a violation. Employers should make a record of the manner, date, and time of any such verification, as SSA may not provide any documentation.
This is probably not the last we will hear of rules for employers and employees. It is anticipated that the tighter rules will result in court action somewhere for clarification and perhaps prompt Congress to look at the broader immigration rules. In the meantime, look carefully at the rules and follow them to the letter for your greatest protection.
Further information can be obtained at www.dhs.gov. This site has the proposed rule, still under consideration in the California court, including summaries of the comments received about the rule. Another on-line resource is http://www.ssa.gov/employer/noMatchNotices.htm. This site gives examples and answers to many typical questions about the process.
[Information for this article is from several sources including the Department of Homeland Security, Social Security Administration, and the California Farm Bureau.]
Published in Dairy Star September 22, 2007