By Lillian Hartgrove, State Board of Education Chairman
Special to the UCBJ
Many employers are receiving letters from the Social Security Administration (SSA) requesting correction of employees’ Social Security Numbers. These are often referred to as “mismatch letters.” The SSA stopped sending employers mismatch letters in 2012 because of complaints made by labor unions, immigrant supporters and businesses. Now, the SSA is sending these letters again, even if only a single employee’s reported Social Security number does not match the SSA’s records.
Many employers, on receiving such letters, assume that the employees whose names are on the report may be working illegally in the US. Some employers even terminate these employees after taking a second look at their I-9 work authorization documentation from the time they were hired.
However, it is important to keep in mind that having an employee’s name on the letter does not necessarily mean that they are not authorized to work in the U.S. Legally, employers are not supposed to use a mismatch letter as a basis to take adverse action, such as suspending the employee without pay or terminating their employment. Social Security numbers may not match for various legitimate reasons, including typographical errors, use of different names, name changes, identity theft, etc.
So, what should employers do? Unfortunately, different branches of the federal government have different opinions on that. Immigration and Customs Enforcement (ICE) has told employers that receipt of an SSA mismatch letter creates a duty to investigate the reason for the discrepancy. If it becomes apparent to an employer that the employee presented a fake Social Security card when they were hired, ICE could later conclude that the employer had knowledge that the employee was not authorized to work, which could result in the imposition of penalties.
On the other hand, the Immigrant and Employee Rights section of the U.S. Department of Justice (DOJ) has stated that receipt of a mismatch letter, standing alone, does not mean that an employer has constructive knowledge of unauthorized employment, and taking action against an employee on that basis “may be considered an unfair documentary practice or evidence of discrimination based on citizenship, national original or immigration status.” That could result in a discrimination lawsuit by the DOJ against the employer.
There are several options employers can take. First, the SSA has published a sample letter that can be given to employees whose names are on the mismatch report, advising them of what to do to correct the issue (assuming it is correctable). Another option is to do nothing, especially if only one name or a few appear on the letter. On the other hand, if a number of names are on the letter, that could increase the legal risk for the employer if they do not take any action. Taking some action to address the mismatch issue would put the employer in a better light if there is a later ICE audit.
One thing that employers receiving mismatch letters may be tempted to do is attempt to re-verify the employee’s employment eligibility by running them through E-Verify, request that they complete a new I-9 form, or ask them to produce specific identity and/or work authorization documents to address the mismatch. Such actions may result in unintended adverse repercussions against the employer, and should not be considered without first seeking the advice of qualified counsel.