The Social Security Administration continues to produce the no-match letters employers dread receiving. You've seen it (if you haven't, knock on wood, dance on one foot, throw salt over your shoulder, or do anything else you believe continues your string of good luck)--the letter where the SSA politely informs you that a Social Security number for one of your employees as reported on Form W-2 does not match the records kept by the Social Security Administration. The letter requests you take steps to verify the information submitted by the employee and take "corrective steps" with SSA. The letter also sternly warns you not to take any adverse action based upon your receipt of the letter.
The U.S. Department of Justice's Office of Special Counsel ("OSC") recently issued guidance intended to help employers understand when the OSC may find reasonable cause that an employer discriminated against an employee during the verification process. Noteworthy is that the employee must be authorized to work in the U.S. before the OSC will consider the allegation of discrimination.
The OSC's guidance references the handling of no-match letters by employers, warning that employers who terminates before attempting to resolve the no-match issue with the employee or who treats employees differently based upon national origin or ethnicity (such as requiring more proof of authorization to work than is required of other employees) may be found to have engaged in discriminatory conduct.
The OSC guidance goes on to say that an employer who follows all of the Department of Homeland Security's safe harbor provisions and terminates due to an inability to resolve the no-match issue will not be found to have engaged in discriminatory conduct. That is, of course, assuming that the employee was treated no differently than other employees in the same or similar situations.
Interestingly, the safe harbor provisions that the OSC requires an employer to follow are still in limbo. You may recall that the original DHS "Safe-Harbor Procedures for Employers Who Receive a "No-Match" Letter" proposed rules were suspended from implementation by an injunction issued by a northern California federal district court in 2007. DHS and SSA issued a proposed modification to the proposed rules on March 26, 2008, meaning that no official "safe harbor" rule as referenced in the OSC guidance is actually in effect.
What's an employer to do? Certainly, investigate any no-match letter received. As you've heard us say before, be consistent in your methods of investigating, the time period allowed an employee to correct the situation, and the result for any employee who is unable to correct the situation. And keep your counsel on speed dial!