In June, the Department of Homeland Security (DHS) issued a proposed regulation addressing mismatch letters. Although employers’ obligations will not be fully settled at least until mid-August when a final regulation may issue, there are specific steps an employer should take upon receipt of one of these letters, according to John Hinton, a partner at Gambrell & Stolz.
“Come late summer, the final regulation should be implemented and employers should have clearer guidance on their responsibilities when they receive a mismatch letter,” he says. “Employers need to understand that they cannot ignore these letters.”
Smart Business spoke with Hinton about Social Security mismatch letters and how employers should respond if they receive one.
Why should employers be concerned about mismatch letters?
Federal law prohibits employers from employing anyone who they know is not authorized to work in the United States. This can be actual knowledge, such as when the employee admits that he or she is not legally in the country, or it can be constructive knowledge, which occurs when an employer has reason to believe the employee might be an unauthorized worker.
The DHS’s proposed regulation states that an employer can be found to have constructive knowledge that an employee is an unauthorized worker if that employer fails to take reasonable steps in response to a mismatch letter. If the employer follows the reasonable steps outlined in the regulation, then the employer will usually avoid a charge of constructive knowledge.
How should an employer respond to a mismatch letter?
First and foremost, employers should not ignore it.
Second, an employer should use the same process to address each employee that is the subject of a mismatch letter.
Third, a mismatch letter does not necessarily mean an employee is an unauthorized worker, so employers should not terminate an employee solely because of a mismatch letter.
The DHS’ proposed regulation includes a set of reasonable steps that employers can take to avoid a charge of constructive knowledge arising from a mismatch letter.
Within 14 days of receiving the letter, an employer should verify there was no clerical or typographical error in the information it provided to the SSA. If an error is found, the employer should provide the SSA with the corrected information. Whenever corrected information is provided to the SSA, the employer should verify with the SSA that the new information is a match and record the time, date and manner of this verification.
If no clerical error was found, then the employer must ask the employee to verify the information. If the employee originally provided incorrect information, then the employer must supply the correct information to the SSA. If an employee verifies that the information provided was correct, then the employer should instruct the employee to go to the local Social Security office to correct the discrepancy. Again, this should take place within 14 days of receipt of the letter. If the employee is able to correct the discrepancy within 60 days of the employer’s receipt of the mismatch letter, then the employer should provide the corrected information to the SSA.
Under the new proposed regulation, if the discrepancy is not resolved within 60 days, then the employer should reverify the employee’s work eligibility through a modified I-9 procedure within three days. Because it isn’t clear that current regulations permit this reverification, an employer should consult with its legal counsel before taking this final step. Also, employers should consult their lawyer before terminating an employee based upon the belief that he or she is not an authorized worker.
Remember that the test for constructive knowledge involves the totality of the circumstances. An employer shouldn’t ignore red flags. Moreover, these steps don’t protect employers with actual knowledge of an employee’s work status. If you have questions, consult your lawyer.
Are there any steps that an employer can take to reduce the chances of receiving a mismatch letter?
The DHS has a pilot program that allows an employer to verify Social Security numbers immediately after the employee is hired. This process helps an employer avoid employing and training someone only to later find that he or she is not an authorized worker.
JOHN HINTON is a partner at Gambrell & Stolz, practicing in the areas of commercial, employment and construction litigation. Reach him at firstname.lastname@example.org or (404) 221-6514.