The Texas Lawbook
In March 2019, the Social Security Administration began sending Employer Correction Request (EDCOR) Notices (commonly known as “no-match” letters) to employers who reported at least one name where the Social Security number on the W-2 wage report for 2018 did not match SSA records. To date, the agency has mailed nearly 600,000 letters to employers nationwide. SSA plans to send the remaining letters for tax year 2018 sometime this fall.
No-match letters are short, seemingly innocuous and often directed at a company’s payroll or tax department. Each letter states a certain number of 2018 W-2 employees who had mismatches and provides instructions on how to resolve the issue.
An employer’s handling of a no-match letter could have adverse consequences should U.S. Immigration and Customs Enforcement initiate an I-9 worksite enforcement audit. The administrative subpoena or Notice of Inspection related to the I-9 audit have long requested employer records concerning receipt of no-match letters, and ICE will likely inquire further about the employer’s efforts to address the no-match. If adequate measures were not taken, the no-match letters can be used as evidence that the employer had constructive knowledge of an employee’s lack of work authorization.
Receipt of a no-match letter does not necessarily mean that an employee is undocumented. In fact, the no-match letter could be generated for relatively minor reasons such as typographical errors, unreported name changes or inaccurate employer records.
Accordingly, the employer should not take any adverse action such as suspending, demoting or terminating an employee solely based on the no-match as such actions could violate federal and state antidiscrimination provisions. Seeking immediately to re-verify the employee’s identity and employment eligibility or requiring the employee to provide only certain types of I-9 documents solely based on receipt of the no-match letter also puts the employer at risk of engaging in discriminatory acts.
Interestingly, the U.S. Department of Justice has advised, in the context of handling no-match letters, that an employer should not require a written report of SSN verification from the SSA, as it may not always be obtainable. Consequently, the employer is left in a precarious situation of ensuring it takes affirmative steps to address the no-match issue while also avoiding actions that could be considered discriminatory.
