Fit for Job, No Match for Social Security
It is common knowledge that when an individual is hired to work, the employer will require that the individual provides evidence that he or she is authorized to work in the United States as well as documents verifying his or her identity. In order to pay employees and deduct payroll taxes, the employer must submit information to the Social Security Administration (SSA). When the SSA receives information from an employer regarding an employee that does not match SSA records such as the employee’s name does not match the social security number on file, the SSA will issue a “no match” letter.
On October 23, 2008, DHS issued a supplemental rule on a safe harbor provision for employers who receive a no-match letter from SSA. If the employer follows the procedures under their safe harbor provision, the DHS will not charge the employer with “constructive knowledge” of hiring illegal workers. This supplemental rule reissues the August 2007 final rule with no material change.
While the August 2007 rule was scheduled to go into effect on September 14, 2007, the US District Court for the Northern District of California preliminarily enjoined DHS’ rule from going into effect. This means the rule is not in effect. Although the rule was enjoined by the Northern District Court of California, the court’s injunction applies to the entire country. The court based its injunction on the irreparable harm it would cause innocent workers and employers. Until the court makes a final decision, the injunction remains in effect until the court dissolves the injunction or decides on whether the rule is legal.
While SSA can still issue no-match letters to employers without making reference to the DHS rule, it has stated that it will not send these letters until the federal litigation is settled. The issuance of the DHS’ supplemental rule on October 23, 2008, no doubt has caused a lot of confusion on the issue, but while the injunction remains in effect, DHS’ no-match rule remains enjoined.