It's not unusual for employers to receive "no match" letters from the Social Security Administration (SSA) stating there is a discrepancy between the wage-reporting information they submitted and SSA records for certain employees.
However, because the Social Security card is the most common document workers submit for the Immigration and Naturalization Service (INS) Form I-9, this often raises the concern that the employee is not authorized to work in the United States.
Advice: Don't treat the SSA notice as an indication that the employee doesn't have work authorization. The SSA reporting requirement and verification of work authorization on the I-9 are not related.
SSA notice isn't I-9 violation
The INS has made it clear that a letter from the SSA about a reporting discrepancy does not, by itself, put your company on notice that an employee isn't authorized to work in this country.
Nonetheless, you must inform the employee that there is an inconsistency between your records and the SSA's records, and ask the employee to attempt to correct the problem with the local SSA office.
If the employee reports back to you with a corrected number or new information, report that information to the SSA. But if an employee says he does not, in fact, have work authorization, you must terminate him.
Correct SSA records
The SSA has instructed employers on how to correct their records when an employee has a new or updated Social Security card. This occurs, for example, when an employee obtains legal permanent resident status.
If you previously filed a W-2 wage report for that employee showing a different name or Social Security number:
- Prepare Form W-2c, Statement of Corrected Income and Tax Amounts, showing the previously used name or number and the correct name and number. The submission of one W-2c will correct all prior reports for the employee.
- Advise the employee to ask for a statement of earnings from the SSA six months later to ensure that past earnings have been recorded to the proper name and number.
- Advise the employee that if he worked for someone else under any previous name or number, he should contact the nearest SSA office to correct his earnings record.
Correct the I-9
You also may need to correct the INS Form I-9 because Part 2 contains your certification that, to the best of your knowledge, the employee is authorized to work in the United States.
If the employee's Social Security number has changed, you should correct the employee's I-9 and initial and date the correction.
For an employee who presented a Social Security card as a List C document on the I-9, ask the employee to show her work authorization document again and then make the correction in Part 2 of the I-9, initialing and dating the correction.
If you have a policy of firing workers who provide false information on an employment application or on the I-9 form, follow it carefully. But don't act too hastily.
In League of United Latin American Citizens (LULAC) v. Pasadena Independent School District (662 F. Supp. 443), a court said that discharging Hispanics based on such a policy illegally discriminated against workers based on citizenship status. That opinion relied partly on the timing of the newly instituted legalization process and when the workers could become legal citizens. The employees would be eligible three months after the trial date to file for legalization and obtain valid Social Security cards and work authorization. In addition, the court found that the employer had not uniformly enforced its policy.
The court found that a large percentage of people who used fake Social Security numbers to get jobs before they became legal were Hispanic. Because of this, terminating employees who had used false numbers but later were able to obtain valid ones would have an uneven impact on Hispanics.
Nancy-Jo Merritt is a shareholder in Littler Mendelson's Phoenix office, and Charles H. Kuck is a shareholder in the firm's Atlanta office. Together, they chair Littler Mendelson's Immigration Practice Group. For more information, visit www.littler.com.
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