The Latest on 'No Match' Letters

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