The Social Security Administration’s (“SSA”) “no-match” letters
have presented a source of great concern for workers and employers
alike. The SSA sends out “no-match” letters to employers if a
discrepancy exists between an employee’s name and social security
number. The letter urges the employer to verify its records within
a specified time period but provides little further guidance. In fact,
the letter advises employers that adverse action against an employee
could constitute discrimination. On the other hand, immigration
law makes it unlawful for an employer to employ an individual
with knowledge (actual or “constructive”) that the individual is
unauthorized to work. Penalties consist of hefty fines, possible
imprisonment, and/or asset forfeiture.
Last year the Department of Homeland Security (“DHS”)
propagated a new policy that would allow it to use an employer’s
receipt of a “no-match” letter as evidence that the employer has
“constructive knowledge” that an employee is unauthorized to
work. A lawsuit brought by the AFL-CIO resulted in a temporary
suspension of the policy and a suspension of SSA “no-match” letters
until DHS provided the court with additional justification for the
policy. However, this injunction may soon come to an end, because
DHS has proposed a new rule in which DHS elaborates on the
legal reasoning behind its policy, but leaves the policy unchanged.
As the issuance of SSA “no-match” letters will likely resume in the
near future, employers must be prepared to take timely action to
avoid being found in “constructive knowledge” and being assessed
significant fines and penalties.