National Clothesline

The Department of Homeland Security has issued a proposed rule that would give employers some guidance on what to do when they receive “no-match” letters from the Social Security Administration (SSA) or the Bureau of Immigration and Customs Enforcement (ICE).

A no-match letter, for those of you who have not received one, is a letter stating that the Social Security number used to withhold taxes from an employee does not match the name contained in SSA records.

This proposed rule is necessary for two reasons. First, employers cannot automatically assume that these employees are illegal aliens and fire them without risking liability for national origin discrimination. Second, employers cannot knowingly employ illegal aliens without violating the law, and knowledge can be shown by circumstantial evidence.

That circumstantial evidence can include receipt of a no-match letter followed by actions such as “doing nothing.” One of the purposes of the rule is to show employers how they can react to a no-match letter and avoid being found to have “constructive knowledge” that the employee is an illegal alien. Courts have held that an employer who does nothing can be charged with knowledge, and the rule is designed to set at least a minimum standard of action.

While the rule is still subject to change, for the time being, it does set forth some common sense methods for dealing with no-match letters. Until the rule becomes final, I would recommend using the proposed rule as a strong guideline.

If you receive a no-match letter, Homeland Security says your first step should be to check your own records for mistakes. Some of these no-match letters are caused by the employer merely reporting the wrong social security number. For example, the number ends in 7878, not 7676. If the mistake is the employer’s, ICE would expect the employer to correct the mistake, verify the correction with the appropriate agency, and make a record of the verification within 14 days.

If the records you have are not at fault, the proposed rule expects employers to then involve the employee. Of course, many employers worry that such an inquiry will cause even legal aliens to scatter, especially if they have relatives working for you who are not properly documented. Doing nothing, however, is not an option.

ICE expects employers to ask the employee to confirm that the information in its records is correct. If it is not correct, the employer would take the same steps to correct and verify the corrections described earlier in this article. In other words, the employer would rectify the clerical error. If the employee’s records are correct, however, the proposed rule suggests that the employer ask the employee to pursue the matter personally with the relevant agency. For example, the employee might need to visit SSA, bring copies of documents, etc. The employer is again supposed to act within 14 days.

Once the employee returns with corrected information, however, the employer must take steps to verify the correctness of the number with SSA.

The proposed rule gives a toll-free number, (800) 772-6270, and a web address, www.ssa.gov/employer/ssnv.htm.

The proposed rule says that the employer should make a record of this verification because SSA typically does not.

If the employer takes these steps, and the discrepancies are resolved, the employer should be safe even if it turns out later that the employee was an illegal alien. The proposed rule, however, says that if the employer actually knew all along that the employee was illegal, going through these steps will not save the employer from liability.

The proposed rule appears to give the employer 60 days to resolve the discrepancy. At the end of the 60 days, the employer really has three options.

First, it can continue to employ the individual at the risk of violating the law.

Second, it can terminate the employee. Third, the employer can within three days complete a new I-9 for the employee, using documents that do not contain the bad social security number or bad alien registration number.

This completion of a new I-9 with different documents seems to be addressed toward formerly illegal aliens who have somehow become legal. The proposed rule, however, also seems to allow employers to take new documents provided they do not actually know the employee is continuing to engage in duplicity.

If a new I-9 is completed, the documents used to verify identity must have a photograph, and the old I-9 must be kept with the new I-9.

The proposed rule also says the employer should not infer that the employee is unauthorized because of his or her appearance or accent. In fact, the employer must uniformly require the same documents of all employees, regardless of their appearance, to avoid violating employment discrimination laws.

Once the new regulation becomes final, I will note that event in future columns, explaining any changes. The new regulation, however, does not preclude other methods of dealing with no-match letters that would tend to straighten out the discrepancy. The methods described in the proposed rule, however, are “government approved,” and I suggest you use them.