Social Security No-Match Rule – Back to Square One

The Social Security Administration (SSA) No-Match Rule illustrates the problem employers can face when intensive government scrutiny is combined with a lack of government guidance. This problem was further exacerbated by the Citizenship and Immigration Services’ (CIS) announcement in November of 1,000 I-9 Audits.

This issue arose in 2007, when DHS issued guidelines for employers confronting SSA “No-Match” notices. However, the SSA initiative was enjoined quickly by federal court order and never took effect. Prior to the injunction, the SSA issued “No-Match” letters to employers on an annual basis, notifying them of employees whose social security information presented to employers did not match information contained in the government’s database. In some cases, the discrepancies were acknowledged to be SSA error, others resulted from name changes of which individuals had failed to inform SSA, and some pointed to possible fraud or identity theft by the employee.

Employers were left with little guidance, however, since the No- Match letters expressly cautioned against taking “personnel action solely based on this letter.” Employee advocates warned employers of discrimination issues, arguing that affected employees should be given many months to address the issue while remaining at work.

The No-Match Rule would have required employers to take concrete steps over a defined period to address employee social security discrepancies, or risk being charged with “constructive knowledge” that their employees were undocumented. Briefly, the Rules called for employers to check their records and to ask employees to resolve any discrepancies within 90 days. It also instructed employers to reverify an employee’s work authorization with documentation not listing the questioned social security number if the discrepancy could not be resolved within that timeframe.

Despite the government’s attempt to clarify the Rule and its justification through an economic impact analysis in March 2008, the No-Match Rule eventually was withdrawn and abandoned entirely under the new Administration.

After all this, employers are back to square one. They have to determine for themselves what steps to take when No-Match issues arise. With government audits on the increase,legal counsel have been getting more requests to advise on these issues. This blog will continue to update you on this developing area of the law.