Three months after the mismatch letters were sent out, Social Security finally responded to questions about an employers' obligations when they receive a mismatch letter. Despite giving specific deadlines (60 days) in the letters to take action, the SSA is now saying they were meant to be educational in nature, and that "Social Security" will take no action if an employer does not go online to get the names and "wrong" numbers so they can verify whether numbers were transposed, etc.
What the SSA does not say is whether some other agency might take action for an employer's inaction. ICE always asks employers when they are audited for I-9s whether they received mismatch letters, and if so, what action was taken While a Social Security card by itself does not establish one's eligibility to work, it does help establish one's identity. ICE could argue, and it has argued before, that an employer did not take reasonable steps in verifying information for an I-9 when it is filled or if it is later notified of issues with part of the documents.
This does not mean logging on to the SSA site to get the names and numbers was wrong or that it subjected the employer to an argument of being aware that an employee was not entitled to work. First, SSA already had the names and numbers of your employees that had mismatches. Second, as confirmed in the attached letter, the information and the fact of whether an employer logged in or not is not shared by SS with other agencies, including ICE. The benefit of logging in is that an employer is not left with reviewing every single employee name/SS# it has provided to the SSA for payrolls. Logging in allows the employer to simply review just the affected employees/SS’s.
The upshot is that SSA left everyone hanging for months, and put employers in the situation of trying to decide what to do, or not do. We do not gamble with our clients' compliance with the law. We knew there was no harm in logging on based on the law and the terms of the letter itself.
Article contributed by Barsamian & Moody
For more information regarding the social security mismatch update, please contact Jason Resnick at (949) 885-2253
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