Best Practices for Handling Social Security Mis-Match Letters
By Greg Berk
The Department of Homeland Security (DHS) recently rescinded their proposal to impose a 90-day safe harbor for employers who receive a notice from the Social Security Administration that a social security number being used by their employee does not match the name on file with the Social Security Administration. Large unions and various business groups feared that work-authorized individuals would accidentally get caught up in the fray and be erroneously terminated. After protracted litigation, DHS backed down and rescinded the proposed rule.
Many social security mis-match letters are created as a result of women being married and changing their name to something different than what is on file at the Social Security Administration. Other reasons include typographical errors at the time of hire, individuals who naturalize and change their name, or individuals using a false name that does not match the social security number.
The rule would have given employers 90 days to resolve the matter without incurring any liability for employing an individual who may lack work authorization. The rule would have also required that if you and the employee cannot resolve the discrepancy, then it would have required that you fill out a new I-9 for the employee using documents other than a “List C” social security card. If you failed to do so, you and your company could have been held liable for civil and criminal penalties. Now that the proposed rule has been rescinded, the key question is where does that leave you, the Employer?
The Social Security Administration is quick to point out that their agency’s authorization to send out a mis-match letter was never dependent on the outcome of the DHS safe harbor proposal.
This area of the law is in flux and there are few “mile markers” on the employment trail. Nonetheless, one long-standing bright-line rule is that if you receive a letter from social security or otherwise become aware that an employee’s social security number may not be valid, then the law still requires that you take affirmative steps to try to resolve the discrepancy. This duty existed before the proposed safe harbor rule and still exists today.
Under these facts, if you receive a social security mis-match letter today, you will still be deemed to have “constructive knowledge” that the employee may possibly not be work authorized. Once you have constructive knowledge, U.S. Immigration & Customs Enforcement (ICE) will expect you to take remedial steps to resolve the discrepancy.
Although the proposed 90-day safe harbor has been rescinded, it is the opinion of this author that using a self imposed “90 day clock” to resolve these issues is still a good benchmark to utilize for existing employees in the absence of any other government bench mark. Accordingly, you should make every effort to resolve the discrepancy within 90 days by advising the existing employee to go to social security and obtain proof of having a valid social security number. If there is no resolution, you should I-9 the individual again using documents other than their social security card. If they cannot produce valid I-9 documentation, then termination is likely in order. However, you should first contact counsel to discuss the issues.
It is interesting to note that employers who use E-Verify only have 10 days to resolve
a discrepancy for a new hire that receives a tentative non-confirmation (TNC) through the E-Verify system. One may ask why “new hires” only receive a few days to resolve the matter while it was proposed that “existing employees” receive up to 90 days. The answer probably lies in the fact that DHS feels that existing employees have a quasi-pre-existing property right (their job) and therefore are entitled to more procedural “due process” before they would be terminated due to discrepancies in their social security number. New hires on the other hand arguably have a diminished expectation since they just began employment with the employer.
This area of the law is clearly in flux. For example, federal contractors must now use E-Verify for all new hires, as well as for existing employees working on a covered contract. As such, in this case, the 90-day benchmark would not even be applicable to existing employees since the E-Verify system only gives the employer 10 days to resolve a tentative non confirmation of work authorization.
In conclusion, Employers should continue to take social security mis-match letters seriously, whether they are issued from the Social Security Administration, Internal Revenue Service, or any other federal agency. Although the proposed “90 day safe harbor” is gone, the underlying duty to act and resolve the discrepancy remains. Ignoring these letters or any other evidence which raise questions about an employee’s authorization to work in the U.S. can create civil and criminal liability to you and your company.
While some I-9 and social security number issues can be easily resolved, some are quite complex and require consultation with counsel. For case specific questions, please contact attorney Greg Berk, Chair of the firm's Immigration Practice Group, at 949-387-6999 or gberk@cdflaborlaw.com.