Does a Social Security Mis-Match Letter Obligate an Employer to Re-Verify an Employee’s Employment

In our last issue we warned you about the flood of "mis-match" letters being issued by the Social Security Administration ("SSA") [see Beware of Social Security Mis-Match Letters]. These letters are sent to employers who submit employee lists with W-2 names or social security numbers ("SSNs") that do match SSA records. In prior years, SSA only sent such letters to employers whose annual wage reports contained mismatches between employee names or SSNs and SSA records for 10% or more of the employer's employees. Because of a recent change in government policy, however, SSA is now sending mis-match letters to employers whose wage reports reflect any mismatch with SSA records. This means employers nationwide are far more likely to receive such letters than in prior years.

While the SSA's mis-match letters are designed to ensure employee earnings are accurately credited to the proper account, they have had an unintended, negative effect on employers by creating a great deal of uncertainty concerning an employer's obligation to re-verify an employee's employment eligibility status under federal immigration laws. This article is intended to alleviate those concerns and recommends the following response strategy for employers who find themselves on the receiving end of such a letter:

• Do not automatically assume a listed employee is an illegal worker as mis-matches can result from a number of inadvertent things such as name changes, clerical errors, etc.
• Do not automatically assume you must re-verify the employee's employment eligibility status;
• Check your records to make sure the errors were not caused by you and immediately notify SSA of any employer-caused errors;
• Assuming there are no employer-caused errors, provide each listed employee with a copy of the mis-match letter;
• Explain the purpose of the mis-match letter to each listed employees (i.e. to ensure earnings are properly credited to each employee's account);
• Do not propose or initiate disciplinary action against an employee solely because they are on the mis-match list;
• Instruct the employee to contact SSA to resolve the discrepancies and report back to you concerning the outcome;
• If an employee is unable to correct the error through SSA, you may then, depending on the circumstances, be on constructive notice of their illegal work status and obligated to terminate their employment.

There remains a good deal of debate among employment and immigration attorneys concerning an employer's obligation to re-verify work authorizations following receipt of a SSA mis-match letter. An employer’s obligations, if any, must be determined on a case-by-case basis. The employer must perform an individualized assessment for each listed employee, which includes an analysis of the I-9 documents originally provided by the employee for employment verification purposes. Employment re-verification is a serious matter laden with dangerous traps for the unwary employer. Accordingly, you should proceed cautiously and consult your attorney before taking any action in response to a SSA mis-match letter.