No-match letters, actually called “Employer Correction Request Notices,” are back after a hiatus that began in 2012 when the Obama Administration suspended the communications. The Internal Revenue Service sends “no-match” letters to employers (and third-party payroll companies) when tax-withholding information does not match information in the IRS database.
While fraud or identity theft are two things that may result in a no-match letter, there are other reasons that a no-match may be generated such as multiple last names, hyphenated last names, unreported name changes, and reporting errors by the employee, employer or SSA. Any discrepancies must be handled in a non-discriminatory and otherwise legal manner.
Don’t Do This.
Don’t request a new Form I-9 from the employee. Still, no action in response to a no-match letter is definitely a no-no. As we have addressed in other blogs, Immigration and Customs Enforcement (commonly known as ICE) has been conducting an increasing number of audits. During an I-9 Audit, employers are usually required to provide no-match letters and evidence supporting what the employer did in response to the letter. If an unauthorized worker is found, and the employer had taken insufficient or no action in response to a no-match letter, ICE may conclude that the employer had constructive knowledge of employing unauthorized workers.
Another thing an employer can’t do is assume that the employee is unauthorized to work. That’s likely to result in a finding of liability under the anti-discrimination provision of the Immigration and Nationality Act. So don’t automatically terminate or take other adverse action against an employee because of the no-match letter.
Try to figure out whether a reporting or input error is the cause of the no-match. The employer and employee should work together and review the relevant documents to confirm that the name and SSN submitted correctly reflect the employee’s name and SSN. If an error is discovered that was submitted to the SSA in the wage report, advise the SSA of the corrections.
If the matter can’t be resolved, the employer should direct the employee to the local Social Security office to attempt to resolve the no-match. No regulations set out any specific time frame or define what would be considered to be a reasonable period of time to address and correct information or otherwise resolve the mismatch. In the e-verify context, SSA can provide a continuance of 120 days for a tentative non-confirmation of work authorization so 120 days is probably a reasonable amount of time. Don’t forget to tell the employee that refusal to provide any documentation or credible explanation of good-faith efforts to correct any problems with his or her SSN or SSA record by the deadline could result in termination from employment.
Contact your employment attorney if you have questions about taking steps in response to a no-match letter or to reduce your risk of receiving one.
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