Thought the Social Security Administration (SSA) no-match letters were a thing of the past? Check your snail mail. In March, SSA began sending Employer Correction Request Notices – officially called EDCORs – to employers whose payroll records do not match SSA records. SSA has not released official numbers, The New York Times and other media have reported that more than 575,000 employers received EDCORs over the last two months.
What is an EDCOR and why are no-match letters back?
EDCORs are similar to SSA’s no-match letters which were issued between 1993 and 2012. Common no-match triggers include minor inconsistencies or clerical errors, such as transposed numbers, name changes, and inverted middle and last names. No-match letters may also indicate the use of false identification.
It may be no coincidence that SSA revived this practice given today’s climate of heightened enforcement and the current Administration’s mandate to protect US workers through the Buy American Hire American Executive Order. The Administration remains laser-focused on reducing unlawful employment. The federal agency responsible for doing so, Immigration and Customs Enforcement (ICE), has long-believed that a strong correlation exists between SSA no-match letters and unauthorized employment.
According to SSA, no-match letters enable the agency to ensure that eligible employees receive benefits they earned. In no-match situations, the employee’s account cannot be credited and the funds are placed in SSA’s Earnings Suspense File (ESF). According to a 2015 report by SSA’s Office of Inspector General, the ESF account reached $1.2 trillion in uncredited wages through the 2012 tax year. That report states that 95% of the ESF can be traced to name and SSN mismatches.
What should employers do upon receipt of an EDCOR?
SSA established an EDCOR website that contains guidance for employers and provides access to its Business Services Online (BSO) portal. Employers must register to access the BSO, which provides the specific names of affected employees and corresponding social security numbers, and take appropriate steps to correct any erroneous information. Records must be corrected within 60 days of receipt of the no-match letter according to SSA.
If employers cannot identify the source of the no-match through a review of internal records, they must ask each employee to provide updated name and/or social security number details. Employers must give employees a reasonable period of time to contact SSA and resolve the no-match before taking any further action. Issuance of no-match letters often results in unauthorized workers leaving their jobs or being terminated by employers, with potentially harmful side effects to legal workers.
It is critical that employers work with experienced immigration counsel to plan and implement an appropriate strategy for communicating with affected employees and making decisions to take further action. Challenging situations arise, for example, when a worker admits having used false identification, or simply refuses to contact SSA or take other steps to correct discrepancies.
What else do employers need to know?
Employers should take SSA no-match letters seriously by immediately working with counsel. The deeper concern is whether a no-match letter impacts the legal status of an employer’s workforce. Receipt of an EDCOR does not mean that the affected employees are unauthorized to work; however, an employer’s failure to take appropriate action may result in ICE concluding that constructive knowledge of unauthorized employment exists. Employers must balance that concern with the risk of taking steps that may lead to complaints of discrimination by an employee or another government agency.
Employers currently undergoing an ICE audit should assume that the agency may obtain their EDCOR information from SSA. While laws exist to prevent agencies from sharing private information, federal agencies such as ICE can request information from SSA if the request is connected to civil or criminal law enforcement.
The resurrected no-match letter program will likely result in new legal challenges. Until the courts or ICE offer further guidance about specific steps that may be taken without triggering anti-discrimination laws, employers who receive no-match letters must proceed with caution. The current Administration likely concluded that potential litigation, inadvertent discrimination, and employer confusion are worthwhile to further its goal of reducing unauthorized employment.