The Social Security Administration (SSA) has announced that after a four year halt, it will resume sending Social Security “no-match” letters to employers. (SSA has continued to send letters to employees’ home addresses if the name and/or social security number on an employer’s W-2 form does not match the information on SSA’s database.)

This new round of no-match letters, formally referred to as “Decentralized Correspondence” (DECOR), informs employers that the information on an employee’s 2010 W-2 wage and tax statement does not match the name and/or Social Security number on file with the SSA, or lacks a SSN entirely. According to the SSA, the purpose of these letters is to obtain corrected information to help the SSA identify the worker to whom the earnings belong and to post the corrected amounts to the employee’s earnings record. SSA will not be sending out no-match letters to employers for the 2007 through 2009 tax years.

SSA’s new no-match letters addressed to employers list only one Social Security number per letter. (The old no-match letters that SSA issued through 005 contained a potentially lengthy list of social security numbers.) The letter advises employers that SSA may share information that it receives with IRS for tax administration purposes, or with the Department of Justice for investigating possible violations of the Social Security Act. The new no-match letters (like the old ones) caution that there can be many reasons for a no-match, such as typographical errors, name changes, and incomplete information. The letter expressly cautions employers that the fact that the employer received a no-match letter “is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual.”

SSA stopped sending no-match letters to employers in 2007 (for 2006 tax year) because of litigation over the proposed safe harbor regulations, which ICE (Immigration and Customs Enforcement) eventually rescinded in 2009. That proposed guidance would have created safe harbor for employers from a charge that they had constructive knowledge that an employee was not authorized to work in the U.S. if the employer responded to a no-match letter following the prescribed steps and within the prescribed timelines. Actual or constructive knowledge that an employee is not authorized to work can result in civil, and in extreme cases, criminal liability for the employer under the Immigration Reform and Control Act of 1986.

What is an employer to do? Receipt of a no-match letter still puts an employer on notice of possible discrepancies that it must look into. SSA advises employers to begin by checking their records to see if the information on the no-match letter is the same as the company’s records, and to ask the employee to check his/her records to ensure that the employee reported his/her name and social security number to the employer accurately. If that does not resolve the problem, SSA expects the employer to instruct the employee to contact the local SSA office, and to give the employee an unspecified but “reasonable” length of time to correct the problem. What is “reasonable” for this purpose has not yet been defined in any federal law, regulation, or court decision.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has provided general guidance for employers to follow in setting up a response plan for no-match letters. The OSC’s recommended steps are:

1. Recognize that name/SSN no-matches can result because of simple administrative errors.
2. Check the reported no-match information against the employer’s personnel records.
3. Inform the employee of the no-match notice.
4. Ask the employee to confirm his/her name/SSN reflected in the employer’s personnel records.
5. Advise the employee to contact SSA to correct and/or update his or her SSA records.
6. Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
7. Follow the same procedures for all employees regardless of citizenship status or national origin.
8. Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
9. Review any document the employee chooses to offer showing resolution of the no-match.
10. Submit any employer or employee corrections to the SSA.

OSC suggests that 120 days may be a “reasonable” length of time to allow for resolution of a Social Security no-match situation, drawing an analogy to the federal government’s E-Verify program, which also allows for up to 120 days to resolve social security number discrepancies. Because no federal statutes or regulations define a “reasonable period of time” in connection with the resolution of a no-match notice, as a practical matter, a “reasonable period of time” will depend on the totality of the circumstances.

OSC also offers employers a list of don’ts in response to no-match letters, including:

1. Don’t assume the no-match letter conveys information regarding the employee’s immigration status or actual work authority.
2. Don’t use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
3. Don’t attempt to immediately reverify the employee’s employment eligibility by
4. requesting the completion of a new Form I-9 based solely on the no-match letter.
5. Don’t follow different procedures for different classes of employees based on their national origin or citizenship status (or any other protected class).
6. Don’t require the employee to produce specific I-9 documents to address the no-match letter.
7. Don’t require the employee to provide a written report of SSA verification (because OSC recognizes such a report from SSA may not always be obtainable).

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