SSA To Resume Issuing Social Security Number Mismatch Letters to Employers

11.13.18

The Social Security Administration (SSA) recently announced it will once again issue ​“mismatch letters” to employers. Beginning in March of 2019, the SSA plans to resume mailing letters to employers who have filed at least one Form W‑2 containing a social security number (SSN) and name reported for one or more employees that do not match SSA records.

The SSA has not issued mismatch letters, now called ​“Employer Correction Request Notices” (EDCOR), since 2007. The letters will instruct employers to register for the Business Services Online (BSO) database, where employers can learn the employee names and SSNs that are mismatched. The letter will also direct employers to correct the mismatched information within 60 days of receiving the mismatch letter. A sample EDCOR notice and SSA instructions on how to correct mismatches can be found here.

All employers, regardless of whether they receive an EDCOR notice, are prohibited from knowingly employing unauthorized workers under the Immigration Reform and Control Act of 1986 (ICRA). However, employers are generally not required to report employees to the SSA or Department of Homeland Security simply because they suspect or receive reports from private, third-party vendors (such as 401(k) administrators) that there may be an SSN mismatch. If an employer receives a mismatch letter or other official correspondence from the SSA, however, employers are required to work with the SSA and follow the agency’s instructions regarding the affected employee. 

Whenever an employer has a credible reason to believe that the identification documents an employee provided in the Form I‑9 process may be incorrect or fraudulent, the employer should use their company’s SSN mismatch policy to investigate the reason for the mismatch and give the affected employee a reasonable period of time to correct potential errors before asking an employee to complete a new Form I‑9 or taking adverse employment action. 

Employers must be careful, however, not to violate ICRA’s anti-discrimination or anti-retaliation provisions when investigating a potential SSN mismatch. Employers may not immediately fire or discipline an affected employee. This is because an employer’s suspicion, concern from a private party, or even a mismatch letter from the SSA, do not create ​“constructive knowledge” of an employee’s undocumented status that would authorize an employer to automatically terminate the employee under ICRA. The new mismatch letters specifically tell employers that receipt of the mismatch letter ​“does not imply that you or your employee intentionally gave the government wrong information about the employee’s name or SSN. This letter does not address your employee’s work authorization or immigrations status.” 

Because an SSN mismatch could be a simple clerical mistake or an accidental misreporting by the employee, employers must give their employees a reasonable period of time to correct the error. If the employee cannot resolve the error, employers can ask the employee to complete a new Form I‑9 with a different identification document than the one previously provided by the employee. Note, however, that ICRA’s anti-discrimination provisions prohibit employers from requiring the employee to provide a specific form of identification (such as a document containing a photograph) when entering into a new Form I‑9 process with an employee. 

Employers seeking to review their Form I‑9 procedures and SSN mismatch policies in light of the SSA’s recent announcement should consult with their legal counsel to ensure their policies are compliant with SSA’s latest mismatch letter and ICRA’s anti-discrimination and anti-retaliation provisions. 

• Employment