The SSA is Back at It:  Beware of the No-Match Letter

Our office has heard from a number of clients throughout the country that recently received “No-Match” letters from the Social Security Administration.  A “mismatch” occurs when an employee’s name and social security number provided on the W-2 form do not match with Social Security Administration records. These can result from typographical errors, unreported name changes, or incomplete records, and a mismatch does not necessarily mean that falsification of records or other misconduct has occurred. But when an employer receives a mismatch letter, it needs to act promptly to resolve the discrepancy.

When an employer receives a mismatch letter, it should follow the instructions provided within the letter. These will include procedures for registering with the Business Services Online (“BSO”) database, where details can be located concerning the mismatch. Employers should also access the Social Security website to gain information and instructions on how to work through the issues. The website explains that the employer should review its own records to see if a typographical or other transmission error has occurred. The employer should then send a notice to the employee, a sample of which is on the website.

The current No-Match letters also provide advice on how to resolve the mismatch.  The letter provides the following “helpful tips”:

• Typographical errors can be corrected by submitting a Form W-2C.
• If an error in the company’s records caused the mismatch, the corrected information can be provided by submitting Form W-2C.
• If the company’s records and the employee’s Social Security card match, ask the employee to check with any local Social Security office to resolve the issue. Once the employee has contacted the Social Security office, they should inform the company of any changes.  Corrected records can be submitted through Form W-2C.
• If the company is unable to resolve the mismatch using these tips, the letter notes the company will not be able to correct the error, and no further action is needed.

Employers should be aware of a few important points. As noted in the letter, merely receiving a mismatch letter does not mean that any falsification, fraud, or other misconduct has occurred. Consequently, employers should not take any adverse employment action upon receipt of a mismatch letter. Employers should maintain communication with the affected employees until the issues are resolved, and we recommend documenting all these steps fully. Finally, if the process indicates that in fact falsification or misuse of Social Security information has occurred, employers should consult legal counsel prior to taking any action with respect to the affected employee.

Lastly, but importantly, while the No-Match letter purports not to raise an immigration or work authorization status issue, a typical Form I-9 audit begins with a request for documents, which includes a request for No-Match letters received by the company.  Immigrations and Customs Enforcement (“ICE”), which conducts such audits, uses the No-Match letter in support of an argument that the employer had constructive knowledge its employees may not be authorized to work.  Given this concern, companies that have employees who are not resolving the no-match issue after receipt of the No-Match letter need to revisit the Form I-9 for those employees.  If the no-match issue is not being resolved, ICE argues the employer can no longer reasonably rely on a social security card produced for Section 2 purposes during the Form I-9 process.  The company needs to meet with those employees who are not resolving the no-match issue and also relied on their Social Security card to prove work authorization status in Section 2 of the Form I-9.  These employees need to be asked to provide either another List C document, other than the Social Security card, or a List A document, to prove employment authorization status.  If another List C document or List A document is not promptly provided, the employee may not be authorized to be working, while leaving the company subject to penalties for employing unauthorized labor.

If you have any questions about the mismatch program or how to proceed if you have received a mismatch letter, be sure to consult with competent and experienced legal counsel.

About the Author

Philip Siegel is a partner and shareholder with the firm Hendrick, Phillips, Salzman & Siegel, P.C., whose practice focuses on labor and employment matters within the construction industry.  Philip has an undergraduate B.B.A. from the University of Michigan, and he obtained his law degree from Emory University School of Law.  Philip can be reached at either (404) 469-9197, or via e-mail at pjs@hpsslaw.com.