As many HR professionals already know, there may be many reasons why an employer might receive a 'No-Match' letter from the Social Security Administration. When filing a new employee's W-2 form, sometimes a typographical error is made - or perhaps the employee recently changed her name and the SSN does not 'match' the person identified in the W-2 form. Maybe the database is erroneous.
As immigration has come under increased scrutiny, the federal government has taken the position that it might be evidence that an employer has knowingly hired an illegal alien. (It is, of course, against the law to knowingly hire an illegal alien.)
A mismatched social security number may be proof that a document has been forged or an SSN stolen. Accordingly, in 2007 and 2008, a federal rule was amended to, in effect, create a presumption that receipt of a 'No-Match' letter was notice to the employer that an employee was unauthorized to work in the U.S. - unless an employer took certain steps to prove that an employee was not an illegal alien (called a 'safe harbor').
Before the rule took effect, an injunction was granted by a Federal Court preventing the implementation of the 'No-Match' amended rule.
Then, last Wednesday the Obama adminstration rescinded the 'No-Match' amended rule. Effective November 6, 2009, an employer will not be obligated to follow the 'safe harbor' steps to avoid the presumption of having knowingly hired an illegal alien.
That being said, the receipt of a 'No-Match' letter from the Social Security Administration is still something that should be dealt with cautiously - because it still might mean that you have unwittingly hired an illegal alien.
Showing posts with label no-match letters. Show all posts
Showing posts with label no-match letters. Show all posts
Friday, October 16, 2009
Friday, August 21, 2009
Dizzy
As Laura reported in her recent blog on July 21, 2009, it appears that the ‘No-Match’ rules may never see the light of day.
The history of this rulemaking effort can be dizzying, but here’s an attempt to reveal the significance of this decision by the Obama administration to eliminate the confusion:
First, we all know that federal law prohibits the knowing employment of a foreign individual who is not authorized to work in the U.S. If, when hiring any new employee, the employer sends in a W-2 with a SSN that does not match the Social Security Administration’s records, the SSA will send back a letter notifying the employer that the records do not match. In August 2007, a proposed regulation from the Department of Homeland Security implied that simply receiving one of these ‘No-Match’ letters from the SSA could be constructive knowledge that the employer had hired an undocumented worker.
Now there may be many reasons why there is no ‘match’ in SSNs, including typographical errors and name changes, but under the regulations, an employer receiving a ‘No-Match’ letter had to immediately undertake a number of procedures to prove that it had not knowingly hired an undocumented worker (known as ‘safe-harbor’ procedures).
The same month that the final rule was issued, suit was filed in a California federal court to prevent enforcement of the rule. The Department of Homeland Security took the opportunity to revise the rule, but the revised rules did nothing to change the ‘safe harbor’ procedures. A preliminary injunction was granted by the court and the rule has yet to be enforced.
On August 19, 2009 the Department of Homeland Security issued a proposed a new rule rescinding the previous rule and reinstating the language of the rule as it existed before 2007. Comments on this proposed rule will be accepted until September 18, 2009. Expect the new rule to be published shortly thereafter.
So where does that leave us now? Stay tuned for more ideas… (See Laura’s July 21, 2009 blog for a hint).
The history of this rulemaking effort can be dizzying, but here’s an attempt to reveal the significance of this decision by the Obama administration to eliminate the confusion:
First, we all know that federal law prohibits the knowing employment of a foreign individual who is not authorized to work in the U.S. If, when hiring any new employee, the employer sends in a W-2 with a SSN that does not match the Social Security Administration’s records, the SSA will send back a letter notifying the employer that the records do not match. In August 2007, a proposed regulation from the Department of Homeland Security implied that simply receiving one of these ‘No-Match’ letters from the SSA could be constructive knowledge that the employer had hired an undocumented worker.
Now there may be many reasons why there is no ‘match’ in SSNs, including typographical errors and name changes, but under the regulations, an employer receiving a ‘No-Match’ letter had to immediately undertake a number of procedures to prove that it had not knowingly hired an undocumented worker (known as ‘safe-harbor’ procedures).
The same month that the final rule was issued, suit was filed in a California federal court to prevent enforcement of the rule. The Department of Homeland Security took the opportunity to revise the rule, but the revised rules did nothing to change the ‘safe harbor’ procedures. A preliminary injunction was granted by the court and the rule has yet to be enforced.
On August 19, 2009 the Department of Homeland Security issued a proposed a new rule rescinding the previous rule and reinstating the language of the rule as it existed before 2007. Comments on this proposed rule will be accepted until September 18, 2009. Expect the new rule to be published shortly thereafter.
So where does that leave us now? Stay tuned for more ideas… (See Laura’s July 21, 2009 blog for a hint).
Tuesday, July 21, 2009
No match no more. . . maybe
President Obama's administration recently announced that it intended to rescind the No-Match regulations which the Department of Homeland Security under President Bush had sought unsuccessfully to implement. Rather than focus on individuals, it appears that the DHS will turn its efforts to utilizing the E-Verify system for employers with federal contracts and subcontracts. But the No-Match regulations are not toast yet--the Senate has attempted to make rescission more difficult by proposing a bill that would prohibit the use of federal funds to eliminate the regulations.
Employers should continue to use best practices when hiring. If you have a reliable and strong system in place now, you will be better positioned to respond to whatever regulations might be waiting.
Happy hiring!
Employers should continue to use best practices when hiring. If you have a reliable and strong system in place now, you will be better positioned to respond to whatever regulations might be waiting.
Happy hiring!
Tuesday, August 12, 2008
No match letter? No big deal? No problem? Not sure? No kidding!
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!
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!
Subscribe to:
Posts (Atom)