As Government Increases Workplace Enforcement, Clear Guidelines for Employers that Receive "No-Match" Letters Remain Illusive
Since President Obama took office in January 2009, the government has been knocking on the doors of employers to check for immigration violations at a drastically increased rate. Unfortunately for employers, the increased emphasis on employer compliance with the immigration employment eligibility verification laws has not been accompanied by clear government guidelines for what an employer should do when it receives a "no-match" letter advising that a worker's information doesn't match government records. Ignoring the letter can leave the employer open to the allegation that it knowingly employed an unauthorized worker, but terminating the worker based upon receipt of the letter can expose the employer to a discrimination claim. The Department of Justice (DOJ) issued guidelines entitled "Name and Social Security Number (SSN) "No-Matches" Information for Employers" that aim to assist employers that receive a no-match letter. But an employer that follows these guidelines can find itself in a position where the guidelines provide no further assistance, and facing a difficult situation.
The Social Security Administration (SSA) issues no-match letters to advise that the name or Social Security number (SSN) reported by an employer for a worker does not match SSA records. No-match letters can be caused by things such as clerical errors and unreported name changes, but are also caused when an unauthorized worker obtains employment using a false SSN or a SSN assigned to someone else. Similar looking no-match letters might be sent from other entities, such as: businesses that conduct background checks; health care providers; third-party identity theft inquiries; and other government agencies.
An employer's duty under federal immigration law to verify the employment eligibility of a worker does not cease once the worker is hired. Facts that come to light after the hire can lead the Department of Homeland Security (DHS) to conclude that the employer had knowledge (either actual or constructive) that the worker was not authorized for employment. Using a totality of the circumstances approach, one of the items that can lead to a finding of constructive knowledge is the employer's receipt of a no-match letter.
Over the years, government guidance regarding no-match letters has been conflicting. Indeed, the American Immigration Lawyers Association has characterized the government's position as "murky." This issue appeared to be resolved in 2007 when the government issued a regulation entitled "Safe-Harbor Procedure for Employers Who Receive a No-Match Letter," but the regulation was challenged in court and subsequently withdrawn after President Obama took office.
As enforcement increases, the stakes are becoming higher for employers that receive a no-match letter. Under President Obama, the government has focused its workplace enforcement efforts toward employers that hire unauthorized workers. In fiscal year 2010, DHS conducted audits of 2,196 companies compared with 503 in fiscal year 2008. Similarly, in fiscal year 2010, the government recovered $6,956,000 in penalties for violations versus $675,209 in fiscal year 2008. In this heated environment, rigorous compliance with the employment eligibility verifications laws is as essential as ever.
The government's 63-page Form I-9 manual assists employers with completing the Form I-9, but it does not provide employers with instructions on how to proceed upon receiving a no-match letter. The DOJ guidelines attempt to fill this gap.
The guidelines specifically instruct employers not to assume that the no-match letter conveys information about the worker's immigration status or employment eligibility. The guidelines further instruct employers not to use receipt of a no-match letter alone as a basis to take adverse action against a worker. At the same time, however, the guidelines instruct employers to give the worker a reasonable amount of time to address the no-match with the local SSA office.
An employer that follows the DOJ guidelines will possibly arrive at the important question of what to do if the worker cannot resolve the no-match, and find that there is no further guidance. This leaves the employer to wonder:
- Will continuing to employ the worker lead to a DHS accusation that we knowingly employed an unauthorized worker? Or,
- Will termination of the worker lead to a claim that we violated the DOJ's instruction not to terminate a worker based on receipt of the no-match letter alone and therefore discriminated?
The DOJ guidelines don't answer these questions, but they point employers down a path that could lead directly to this situation.
Clear guidance from the government remains illusive. As much as the DOJ guidelines attempt to assist employers, they still remain unclear. Assistance from counsel is important for employers seeking to navigate these murky waters.
