The Latest on 'No Match' Letters

Part One of this article described the background, key provisions and legal challenges to the 'No-Match' regulations. The conclusion below offers strategies for employers.

Strategies for Employers

Pending a resolution to the legal challenges to the new regulation, employers face uncertainty regarding the proper response to a 'no-match' letter and the extent to which they may be subject to discrimination claims for their actions. If an employer follows the procedures provided in the new regulation, DHS will not allege that the employer had 'constructive knowledge' it was employing an illegal worker. If an employer chooses to terminate an employee after following these procedures ' and has followed the same procedures for all its employees with 'no matches' regardless of race or ethnicity ' the termination will not be considered a civil rights violation by the Federal Government. While this 'safe harbor' does not immunize an employer from an individual's claims of discrimination under the INA (8 U.S.C.
' 1324b) and Title VII of the Civil Rights Act of 1964 (42 U.S.C. ' 2000e), careful application of the safe harbor procedures to all employees should provide an effective defense to any such claims. Employers should consider implementing the following guidelines:

• Reduce 'No-Matches' Due to Errors;
• Use SSA's Social Security Number Verification Service (SSNVS) (www. ssa.gov/employer/ssnv.htm) to verify that the Social Security Number and names of employees match those in the SSA database. The system allows an employer to verify up to 10 records directly through the Web site or upload up to 250,000 records for the system to verify;
• Use DHS and SSA's jointly conducted Employment Eligibility Verification Program ('E-Verify') (www.dhs.gov/e-verify) to verify employment eligibility of new hires and the validity of their Social Security Numbers (SSNs);
• Ask employees to re-verify SSNs that begin with '000' or that are in the '800' or '900' series, since these numbers are not used by the SSA;
• Ask employees to check their social security cards against their form W-2s or pay stubs for name or SSN variations so that any errors in the employer's records may be corrected;
• Remind employees to update their information with SSA to account for name changes due to marriage, divorce or other reasons so that their wages are properly credited for benefits eligibility purposes; and
• If an employee reports a name change to the employer, the employer should not change the way it reports his or her name until the employee has obtained an updated Social Security card with the new name.
• Complete section one of the I-9 form on the first day that each employee begins work and complete the entire I-9 form within 3 days;
• Do not complete a new I-9 form for changes; instead, enter the changes on the original form, then initial and date the changes;
• Establish a system to track and update any employment authorization documents that may expire;
• Document efforts to complete the I-9 forms and re-verify any expired work authorizations. Keep all documentation for 3 years following an employee's last day of employment; and
• Follow the same procedure for all employees and job applicants.

Respond to 'No-Match' Letters

DHS may consider the reasonableness of an employer's response to a 'no-match' letter in determining whether an employer had constructive knowledge that an employee was unauthorized to work. If the new regulation survives the legal challenges, a reasonable response also allows an employer to claim the safe harbor. Therefore, employers should consider these guidelines:

• Follow the instructions on the 'no-match' letter. The safe-harbor procedures are different for a Notice of Suspect Documents from Immi-gration and Customs Enforcement (ICE) and for an Employer Correction Request from SSA. Generally, the employer should directly contact the local DHS office in the case of a Notice of Suspect Documents;
• Check records first for typographical and clerical errors and then give the employee an opportunity to correct any errors in the records. If the employee believes the information is correct, the employer should inform the employee that he or she should promptly contact the appropriate agency to resolve the issue;
• Follow the same procedures for all employees, regardless of citizenship status, race or ethnicity. The employer should not ask an employee to provide any documentation beyond what is specifically required by the regulation;
• Document efforts to follow the safe-harbor procedures, including efforts to notify employees and a description of the documents relied upon in completing the forms. Even if the employer is ultimately unable to resolve the 'no-match,' its efforts may be considered 'reasonable steps' in addressing the no-match letter; and
• Seek the advice of counsel if unsure about how to proceed.

Conclusion

As new regulations expose employers to potential new legal risks, employers would be well advised to develop very clear and systematic set of instructions for human resources personnel on how to navigate these safe-harbor procedures while avoiding possible discrimination claims. Certain employers who have not previously reconciled 'no-matches' identified in earlier SSA or ICE letters may wish to consider procedures that will allow them to take advantage of the potential safe harbor.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Philip J. Perry is a litigation partner in the firm's Washington, DC, office. Melinda Li, an associate at the firm's New York office, assisted with the preparation of this article.

Part One of this article described the background, key provisions and legal challenges to the 'No-Match' regulations. The conclusion below offers strategies for employers.

Strategies for Employers

Pending a resolution to the legal challenges to the new regulation, employers face uncertainty regarding the proper response to a 'no-match' letter and the extent to which they may be subject to discrimination claims for their actions. If an employer follows the procedures provided in the new regulation, DHS will not allege that the employer had 'constructive knowledge' it was employing an illegal worker. If an employer chooses to terminate an employee after following these procedures ' and has followed the same procedures for all its employees with 'no matches' regardless of race or ethnicity ' the termination will not be considered a civil rights violation by the Federal Government. While this 'safe harbor' does not immunize an employer from an individual's claims of discrimination under the INA (8 U.S.C.
' 1324b) and Title VII of the Civil Rights Act of 1964 (42 U.S.C. ' 2000e), careful application of the safe harbor procedures to all employees should provide an effective defense to any such claims. Employers should consider implementing the following guidelines:

• Reduce 'No-Matches' Due to Errors;
• Use SSA's Social Security Number Verification Service (SSNVS) (www. ssa.gov/employer/ssnv.htm) to verify that the Social Security Number and names of employees match those in the SSA database. The system allows an employer to verify up to 10 records directly through the Web site or upload up to 250,000 records for the system to verify;
• Use DHS and SSA's jointly conducted Employment Eligibility Verification Program ('E-Verify') (www.dhs.gov/e-verify) to verify employment eligibility of new hires and the validity of their Social Security Numbers (SSNs);
• Ask employees to re-verify SSNs that begin with '000' or that are in the '800' or '900' series, since these numbers are not used by the SSA;
• Ask employees to check their social security cards against their form W-2s or pay stubs for name or SSN variations so that any errors in the employer's records may be corrected;
• Remind employees to update their information with SSA to account for name changes due to marriage, divorce or other reasons so that their wages are properly credited for benefits eligibility purposes; and
• If an employee reports a name change to the employer, the employer should not change the way it reports his or her name until the employee has obtained an updated Social Security card with the new name.
• Complete section one of the I-9 form on the first day that each employee begins work and complete the entire I-9 form within 3 days;
• Do not complete a new I-9 form for changes; instead, enter the changes on the original form, then initial and date the changes;
• Establish a system to track and update any employment authorization documents that may expire;
• Document efforts to complete the I-9 forms and re-verify any expired work authorizations. Keep all documentation for 3 years following an employee's last day of employment; and
• Follow the same procedure for all employees and job applicants.

Respond to 'No-Match' Letters

DHS may consider the reasonableness of an employer's response to a 'no-match' letter in determining whether an employer had constructive knowledge that an employee was unauthorized to work. If the new regulation survives the legal challenges, a reasonable response also allows an employer to claim the safe harbor. Therefore, employers should consider these guidelines:

• Follow the instructions on the 'no-match' letter. The safe-harbor procedures are different for a Notice of Suspect Documents from Immi-gration and Customs Enforcement (ICE) and for an Employer Correction Request from SSA. Generally, the employer should directly contact the local DHS office in the case of a Notice of Suspect Documents;
• Check records first for typographical and clerical errors and then give the employee an opportunity to correct any errors in the records. If the employee believes the information is correct, the employer should inform the employee that he or she should promptly contact the appropriate agency to resolve the issue;
• Follow the same procedures for all employees, regardless of citizenship status, race or ethnicity. The employer should not ask an employee to provide any documentation beyond what is specifically required by the regulation;
• Document efforts to follow the safe-harbor procedures, including efforts to notify employees and a description of the documents relied upon in completing the forms. Even if the employer is ultimately unable to resolve the 'no-match,' its efforts may be considered 'reasonable steps' in addressing the no-match letter; and
• Seek the advice of counsel if unsure about how to proceed.

Conclusion

As new regulations expose employers to potential new legal risks, employers would be well advised to develop very clear and systematic set of instructions for human resources personnel on how to navigate these safe-harbor procedures while avoiding possible discrimination claims. Certain employers who have not previously reconciled 'no-matches' identified in earlier SSA or ICE letters may wish to consider procedures that will allow them to take advantage of the potential safe harbor.

John D. Shyer, a member of this newsletter's Board of Editors, is a labor and employment law partner in the New York office of Latham & Watkins LLP. Philip J. Perry is a litigation partner in the firm's Washington, DC, office. Melinda Li, an associate at the firm's New York office, assisted with the preparation of this article.