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May 18, 2011

SSA Resumes “No-Match” Letter Program

The Social Security Administration (“SSA”) has recently resumed sending “no-match” letters to employers informing them of inconsistencies between employer-reported payroll data and SSA records.  The SSA had stopped sending no-match letters to employers in 2007 in response to litigation over a Department of Homeland Security (“DHS”) regulation that mandated certain steps an employer had to take whenever it received a no-match letter.  The DHS eventually rescinded the regulation. 

Upon receiving a no-match letter, an employer may not take any adverse employment action against the employee without first attempting to resolve the inconsistencies and providing the employee ample opportunity to do the same.  The employer should review its records to see if the mismatch is due to a clerical or other recordkeeping error.  If the employer finds an error in its own records, the employer should immediately advise the SSA of the correct information.  If the employer cannot remedy the problem through an examination of its records, the employer should inform the employee of the discrepancy and ask the employee to verify the information on file with the employer.  If the employer’s records are incorrect, the employer should correct its information and inform the SSA.  If the employee provides the same information as previously provided, the employer should provide the employee a reasonable amount of time to resolve the inconsistencies with the SAA.  If after a reasonable period of time the employee has not resolved the inconsistency with the SAA, continued employment may be used as evidence in an criminal investigation that the employer had constructive knowledge that the employee lacked employment authorization.  Accordingly, an adverse employment action, including terminating the employee who lacks employment authorization, may then be appropriate.

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If you have any questions about no-match letters, please do not hesitate to contact us.