Employers may recall several years ago when they received letters from the Social Security Administration informing them that the Social Security Numbers they reported did not match the corresponding employees’ names. A new round of letters is on the way beginning this month. Employers will need to review the letters carefully, perform due diligence to determine the possible cause of the mismatch and give identified employees a reasonable opportunity to resolve the situation. If not already in place, employers should develop procedures to address no-match letters and then follow the procedures consistently.

For background, the letters from several years ago explained that such "mismatches" could occur from typographical errors, name changes or incomplete information. The letters also specifically instructed employers that the fact that a current or former employee’s name appeared in the letter was not any indication of work authorization status and that the letter alone was insufficient to take adverse action against (i.e. terminate) the employee. Employers often found themselves in a precarious situation. On the one hand, if they continued to employ the individual without taking corrective action, they risked employing someone who did not have work authorization. On the other hand, if they terminated an employee immediately after receiving a no-match letter, they risked an unlawful termination lawsuit.

In 2007, the Department of Homeland Security published a proposed regulation to address a variety of no-match situations, including both Social Security Administration- and Department of Homeland Security-related notifications. The regulation provided various timelines and "safe-harbor" provisions for employers to follow after receiving a no-match letter. Soon after DHS published the regulation, a U.S. District Court in California preliminarily enjoined its implementation. DHS eventually withdrew the regulation in 2009 and explained that it was going to pursue other enforcement programs to verify the nation’s workforce. The ensuing piecemeal implementation of the "voluntary" E-Verify program and increased worksite investigations have shown that DHS has not walked away from the issue.

The situation appears to have come full circle with SSA once again sending its no-match letters to employers. The first batch began April 6, 2011 and likely will continue. To help employers understand and address no-match letters, the Department of Justice’s Office of Special Counsel published a "Do" and "Don’t" list and FAQ’s, which can be found here. Among them is a suggestion that 120 days may be a reasonable period of time to resolve Social Security Number mismatches. As noted above, however, the key will be for employers to establish a plan and then follow it consistently.