The Department of Homeland Security has announced new rules on the safe-harbor procedures for employers who receive SSA No-Match Letters. These rules require employers to terminate any employee who uses a fake social security number or otherwise cannot be documented as legal. The DHS has also published an interactive Safe Harbor Information Center for employers.
The regulations describe with specificity what steps employers should take upon receipt of a no-match letter:
- Verify within 30 days that the mismatch was not the result of a record-keeping error on the employer’s part;
- Request that the employee confirm the accuracy of employment records;
- Ask the employee to resolve the issue with SSA;
- If these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA, and retain a record of the verification with SSA; and
- Where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographic data.
Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons.
Costs of compliance will potentially be high, especially for those employers that rely upon unskilled labor. Costs of non-compliance, however, could potentially be devastating. Employers cannot ignore these new rules. If you choose to disregard a No-Match Letter, and it is later determined that some of the employees listed are not authorized to work, your receipt of the letter is evidence that you have knowingly continued to employ unauthorized workers, which could lead to significant criminal and civil sanctions.