As many employers may already know, the U.S. Social Security Administration is following through on an announcement it made last year that it would resume this spring the issuance of employer correction request notices, or so-called no-match letters.

The letters “are coming out in very large volumes,” said Harry Joe of Dallas-based global business immigration law firm JMA Firm. “I've had a lot of [client-]employers very nervous because of what this may lead to.”

What many employers may be less familiar with, Joe and other immigration law experts told Corporate Counsel, is the history behind the controversial letters, which essentially inform employers that information, including name or Social Security number, reported on a particular employee's W-2 form does not match the SSA's records.

Although the letters have been around since 1993, it wasn't until 2006, during the second term of the George W. Bush administration, when a regulation set forth procedures for employers to follow upon receipt of the letters, that employers began to take notice. The rule was litigated from 2007 to 2009, when it was rescinded by the Obama administration, which, in 2012, stopped the practice of sending letters to employers regarding data mismatches.

But likely in response to President Donald Trump's Buy American and Hire American Executive Order in April 2017, SSA recently re-implemented the policy.

“It's been about nine years since we've seen the letters, but I think this is the current administration trying to crack down on individuals who are working without authorization, and employers are stuck in the middle,” said Littler Mendelson shareholder and global mobility and immigration practice group chair Jorge Lopez.

In an email to Corporate Counsel, an SSA spokesperson declined to say why the policy was re-implemented at this time but rather explained the procedure behind the letters.

“Social Security is committed to maintaining the accuracy of earnings records used to determine benefit amounts to ensure people get the benefits they have earned,” was all the email said in terms of rationale. “If we cannot match the name and SSN reported on a W-2 to our records, we cannot credit earnings to a worker's record. When earnings are missing, the worker may not qualify for Social Security benefits he or she is due or the benefit amount may be incorrect.”

Compounding the matter, Joe said, is that the SSA may share information with other agencies, including Homeland Security Investigations and U.S. Immigration and Customs Enforcement, turning what may have started into a payroll and benefits matter into an immigration and undocumented workers issue.

“This is a clear warning to employers that if they aren't maintaining their I-9s, they should be,” he said. “Make sure your I-9s are all in order; make sure you have one for every employee; and make sure it's properly completed and signed. An employer that ignores this non-match letter does so at their peril.”

Lopez said he has been advising his employer-clients to follow a series of steps upon receipt of a no-match letter:

• Do not take any adverse action against an employee on the basis of the letter alone.
• Try to find out whom the employees at issue are, comparing the SSA's information with your own, being mindful that transcription errors, name changes due to divorce and marriage, as well as the commonality of bifurcated Hispanic names, often cause internal unintentional errors.
• If your records match, advise the employee of the issue and ask him or her to reach out to the SSA to resolve the issue.
• Given that the no-match letter asks the employer to respond within 60 days of receipt, it should follow up with the employee after 30 days or so to ensure that he or she has taken the necessary steps regarding contact and resolution with the SSA.

Otieno Ombok, a principal at Jackson Lewis in White Plains, New York, added the employer should document communications with the employee during this resolution period to help determine whether the latter responded appropriately. The employer also should work with the employee to resolve the matter, providing him or her plenty of time to visit the local SSA office if need be, he added.

Having such a plan of action in place can ease an employer's panic or paranoia, Ombok said.

“The fact that a no-match letter has been received does not mean that the worker is not authorized to work in the U.S.,” he said.