What if you get a ‘no-match’ letter from the Feds?
September 26, 2008 by Jim GiulianoPosted in: Employment law, Hiring, Immigration, Records documentation, Special Report, Terminations, policies
Suppose one day you get a “no-match” letter from the Social Security Administration saying an employee’s information doesn’t match what’s in the fed’s database. Also, suppose the employee doesn’t take any action to correct the problem. What now?
And here’s the real dilemma: You of course can get penalized for keeping an employee you know is unauthorized to work in the U.S. But you can also be liable for wrongful termination if you fire an employee who, in fact, is eligible to work.
Key court ruling
One company, Aramark Facility Services, faced this problem after the SSA notified the company that information it reported about some employees didn’t match what the SSA had on file.
In response to the no-match letter, Aramark gave the employees three days to provide proof they had applied for new Social Security cards. It then fired the employees who didn’t provide the proof after seven days.
When the fired employees sued, a federal court held that the company had blundered and had to reinstate the fired employees, with back pay. Here’s why:
- An SSA no-match letter does not, by itself, put a company on notice that the employees named in the letter are undocumented.
- The no-match letter combined with the employees’ response, or lack of response, to the company’s request for valid Social Security numbers still did not put the company on notice that the workers might be undocumented, given the short turnaround time the employees had to produce the proof.
Avoiding a lawsuit
What’s the correct – and lawsuit-proof – procedure? The laws give you 90 days to straighten out no-match problems. And unless you have overwhelming proof that the employees don’t have a legal right to work in the U.S., you probably should take the full 90 days.
For more on dealing with no-match letters and related matters, see the advice from Anita Patel, with the law firm of Wimberly Lawson Seale Wright & Daves.
Cite: Aramark Facility Services v. SEIU, No. 6917.
Tags: Aramark, no match, social security administration, ssa
September 29th, 2008 at 3:53 pm
We tell our team members that they have 3 days to proof their legal eligibility to work in the US. 98% of the time, they either immediately admit their paperwork is illicit or they never come back to work. We recently had a case, where it was a mistake and the team member was able to bring in the documents and clarify her right to work. No problem, she kept her job. They key is how you word it. No, you can’t terminate someone because they are identified in a no-match letter, but you can request they contact the social security office and you can request them to prove their eligible to work in the US by presenting original documents listed in lists A or B and C of the I-9. Thanks.
September 29th, 2008 at 5:42 pm
The very reason we use the Department of Homeland Security E-Verify system – We have used the system since 2001 and have had no problems like the article mentions…
September 29th, 2008 at 6:30 pm
We have a list of policies and procedures, and according to the Mismatch procedure we have, it says the employee has 21 days to bring in appropriate documentation before they face termination. Now does this policy vary from company to company? Or is it 90 days for everyone? 21 days?
September 29th, 2008 at 6:59 pm
What about pre-employment checks? We recently had a background check, done as part of our regular pre-employment screening, that came back with the Social security number on the death registration index. Are we to hold the position? Do we give the applicant time to bring in other documentaion? If so, for how long?
September 30th, 2008 at 10:46 am
All good comments. I have not had this issue where I am now employed. We do do background checks – Driver’s License (as most of the employees are required to drive company vehicles and transport clients of the Agency), criminal and Education Verification. We also fingerprint every employee as well. I would observe the 90 days as that is what the government uses just to avoid any possible lawsuits.
October 6th, 2008 at 3:06 pm
The problem with the E-Verify is it states you can not use it for pre-employment. You must hire this person and then you can perform the check within 3 days of the I9 from being completed. So if there is a problem with a SS number, they could work for up to 90 days then leave. The company would still get a no-match letter.
October 17th, 2008 at 10:39 pm
A no match letter can be caused by something as simple as the payroll clerk missing a middle initial when entering a new employee into the payroll system. This has happened to me and a simple letter with a copy of my SS card to the SSA corrected the problem.