OMG! I Think My Employee is Illegal!

Happy Birthday, Big Guy!

It was yesterday, Little Man.  But thanks.  What's new?



Well Spring is here, and my landscaping business is extremely busy these days.  But I may have a problem with some of my laborers.

What’s that?

Well, I just received a “no match” letter from the Social Security Administration (SSA) saying the social security numbers for some of my workers do not match their names on my payroll.  I guess I need to fire them.

Actually, you don’t.  In fact, if you do, you may open yourself up to liability.

Huh?

Well, let me ask you this: When you first hired these people, did you verify their work authorization on Immigration Form I-9?

Oh yeah, we do all that paperwork.  Keep it on file for three years, then get them to fill out the forms again.  8 U.S.C. § 274A(b). 

Great.  What kind of proof of work authorization did they give you?

 Social Security card and a state of Washington driver’s license. 

 Hmmm.  Well, Washington is the last state in the U.S. to not require proof of citizenship or a lawful presence to get a driver’s license.

 So, how does that affect me?

 First, you did nothing wrong by simply accepting the Washington driver’s license as acceptable photo ID on the I-9 so long as it appeared legitimate on its face.

It did.

Okay.  With respect to receipt of a “no match” letter, federal law prohibits you from assuming it conveys information regarding the employee’s immigration status.  In fact, the letter itself usually states the information provided “does not make any statement about…immigration status” and “is not a basis, in and of itself, to take any adverse action against the employee.”  Aramark Facility Services v. SEIU, 530 F.3d 817, 826 (2008), quoting the Social Security Number Verification Service Handbook.

Yes, the letters I received say exactly that.  So what do I do?

Relax.  Employers do not face any penalty from the SSA, which lacks an enforcement arm for ignoring a no-match letter.  The IRS also imposes no sanctions stemming from a “no-match” letter, and requires no additional solicitations of an employee’s social security number unless it sends a “penalty notice” to the employer indicating that the social security number is incorrect.  Was any such letter delivered from the IRS?

No.

Good.  Now, at a minimum, you need to simply give a copy of the letter to the employee.  In theory, their main purpose is not immigration-related, but rather to simply indicate to workers that their earnings are not being properly credited.  Aramark Facility Services v. SEIU, 530 F.3d 817, 826 (2008), citing the Deputy Commissioner of the SSA. 

Okay.  Then what?

 You may then ask the employee to confirm his/her name and social security number as indicated on the Form I-9 in your employment file.

 Can’t I just ask them if they are illegal?  I'm sure these guys would just admit it to me.  Then I can tell them to pack their bones and go hit the bricks.

 

 ABSOLUTELY NOT!!!

Why?

 Under the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from committing an “unfair immigration-related employment practice.”  Discrimination on the basis of national origin or citizenship status is prohibited under IRCA in hiring, recruiting, referring for a fee, and discharging.  8 U.S.C. § 1324b(a)(3)(B).  It is also an unfair immigration-related practice for an employer to require more documents than the law requires or to refuse documents that “on their face reasonably appear to be genuine” for verification purposes.  8 U.S.C. § 1324b(a)(6). 

But I’m pretty sure these guys are illegal after receiving these “no match” letters.

 Doesn’t matter.  If they maintain that their names and social security numbers are correct and the Washington driver’s licenses are valid, the “no match” letters are simply an issue between them and the SSA.

Wow.

Good practice is to simply inform employees of the mismatch and leave it to the individual worker to resolve the discrepancy with the SSA.  Under current law, an employer is not required to conduct follow-up activity after receipt of a “no-match” letter. 

Thanks, Big Guy.

Any time.  For a list of “Do’s and “Don’ts” from the Department of Justice, check out: http://www.justice.gov/crt/about/osc/pdf/publications/SSA/Employers.pdf   

Of course, this information is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation. Those seeking specific legal advice or assistance should contact a qualified attorney regarding the subject matter.