If you are an employer, there never was a better time than now for you to make sure that your employees’ Social Security paperwork is in order, particularly when the federal government is cracking down on employers for immigration violations.
For the first time in years, the Social Security Administration (SSA) is again sending out a large number of “no-match” letters to employers. The letters notify employers that the Social Security number stated by an employee during the hiring process does not match the information reflected in the government’s records.
Employers face many legal obligations when they find themselves confronting potentially invalid Social Security numbers, and efforts to comply with one obligation often put them at risk of violating other obligations, note attorneys for the law firm of Hopkins & Carley. Before taking action, employers need to make sure they understand the legal issues involved.
On the one hand, an employer cannot employ any individual who has not presented documents reflecting his or her right to work. Those documents often (but not always) include a Social Security card, the lawyers point out.
On the other hand, employers could expose themselves to the risk of a discrimination suit if they treat mismatched or invalid Social Security numbers as proof that employees are not entitled to work in the United States, the lawyers stress. So what’s a well-intentioned employer to do?
“As is true with many legal issues, it’s not possible to provide a ‘one-size-fits-all’ answer to this question,” they explain. “Nevertheless, employers may be wise to follow several general recommendations in many instances, and to confer with counsel to discuss the specific circumstances of their situation.” The Hopkins & Carley attorneys recommend:
• Don’t ignore the issue, but don’t act rashly. Employers should not ignore reports of mismatched Social Security numbers; but they also should not assume that a mismatched number is proof that the employee in question is not entitled to work in the U.S.
• Identify employees with mis-matched Social Security numbers. Letters from the Social Security Administration will direct employers to a website where the employer can learn the identity of employees with mismatched Social Security numbers. Employers should obtain the names of employees with potential mismatches through that website, but should not use the website for any other purpose without conferring with counsel
.• Double check your records. When informed of a mismatched Social Security number, employers should compare the number reflected in their records with the number reported by the SSA and the employee to assure that the mismatch is not due to an internal error.
• If a mismatch truly exists, refer the employee to the SSA. If the number reported by the employee truly conflicts with the number reported by the SSA, the employer should notify the employee of the mismatch and direct the employee to contact SSA to rectify the problem. Employers should generally give employees at least 90 days to resolve the problem, and should direct the employee to report to the employer periodically on his or her efforts.
Dealing With Immigrants
• Treat new Social Security numbers as valid absent evidence to the contrary. If the employee provides a new Social Security number after being informed of a mismatch, employers should generally accept the new number as valid absent some specific indication that it is not.
• If the discrepancy isn’t resolved, determine if the employee’s right to work is based on the validity of the Social Security number. The law permits employees to establish their right to work in the U.S. with a variety of documents, and a person’s right to work can be proved without reference to a Social Security card.
If the documents produced by the employee to establish his or her right to work did not include a Social Security card, the employee’s right to work is not dependent on the validity of their card and the employer should not terminate employment based on the mismatched Social Security number, the lawyers warn.
• If the employee’s right to work is dependent on the validity of the Social Security number and the person cannot resolve the discrepancy, confer with counsel. If the documents produced by the employee to establish his or her right to work included the mismatched Social Security number and the employee has not been able to rectify the discrepancy, the employer may possess constructive notice that the employee is not entitled to work in this country.
Employers who find they are facing this circumstance definitely should confer with their counsel to discuss in detail all of the options that may be available to them.
• Document your efforts to resolve the discrepancy. Employers should document their efforts to resolve mismatches of Social Security numbers in order to position themselves against potential accusations that they have knowingly employed persons not entitled to work in the U.S.
• Discharge employees who admit they are not legally entitled to work. Employees who become aware of mismatched Social Security numbers occasionally admit that they are in the U.S. illegally and are not entitled to work. If the employee makes such an admission, the employer cannot continue to employ him or her and should generally terminate employment after conferring with counsel.
• Treat all employees consistently. Employers should treat all employees with mismatched Social Security numbers consistently, regardless of race, national origin or other considerations. Good policy in general, this also helps avoid accusations of discrimination.
• Do not recheck I-9 records for existing employees absent some evidence that the documentation provided is invalid. Employers may expose themselves to a risk of liability for discrimination if they elect to review I-9 documentation provided by existing employee in the absence of some tangible evidence suggesting that the documentation is invalid. As a result, they should not arbitrarily recheck I-9 records for existing employees.
“Mismatched Social Security numbers present employers with a complex web of legal obligations that often appear to conflict with one another,” Hopkins & Carley attorneys admit. “By following our general advice and conferring with counsel, employers can significantly reduce their risk of liability in this delicate circumstance.”
