Last month the SSA began sending “no-match” letters to employers after a four year suspension as a result of DHS’s attempt to implement safe-harbor procedures for employers who receive a no-match letter.  Unfortunately for employers, although the no-match letters are being distributed again, there remains no consensus among the various government agencies regarding what employers are supposed to do with the no-match letters.

Here’s the breakdown:

  • SSA
    • “A no-match between an employee’s name and SSN in the employer and SSA’s records DOES NOT mean that the employee lacks work authorization, nor does it make any statement regarding a worker’s immigration status.”  
    • The no-match letter itself also states that it does not imply that the employee intentionally provided incorrect information and that it is not a basis, in and of itself, to take adverse action against the employee
  • DHS
    • “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘constructive knowledge.’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.  Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.”
    • ICE routinely requests that employers provide copies of no-match letters as part of a Form I-9 audit.
  • DOJ Civil Rights Division
    • Employers should not “[u]se the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against an employee.  Instead, employers should “[g]ive the employee a reasonable period of time to address a reported no-match with the local SSA office.”
  • Anyone else care to chime in?

Where does this guidance (or lack thereof) leave employers? Employers cannot ignore no-match letters especially considering that no-match letters have formed the basis for multiple criminal investigations by ICE and prosecutions for harboring or knowingly hiring unauthorized workers.  However, employers cannot terminate employees based on the receipt of a no-match letter alone. Well, that clarifies it.

To make matters worse, approximately 1.6 million letters mailed by the SSA to employees included an incorrect Spanish translation that read, “Your employer may take action against you based on this letter,” rather than “Your employer may not take action against you based on this letter.” The SSA is still considering whether it will re-mail corrected letters to those individuals who received the incorrect Spanish translation.