The Social Security Administration is once again mailing notices to employers about employees whose name and Social Security number on W-2 records don't match what the administration has on file.

And while an employer could be violating immigration law by knowingly employing an unauthorized worker, employers are being advised against taking disciplinary or other action against a worker who is the subject of such a notice.

The administration needs accurate data that allows it to pair workers with reported earnings to ensure that workers get full credit for earned disability or retirement benefits.

There could be several reasons for incorrect or mismatched names and Social Security numbers, including typographical errors, unreported name changes, and inaccurate or incomplete employer records.

Employers who receive such a notice should understand that it doesn't automatically imply that the employer or employee intentionally gave the government wrong information about the employee's name or SSN, nor does it indicate that the worker lacks proper work authorization or immigration status.

Legal Consequences

In addition, employers should not rely on the notice to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual because their SSN or name does not match administration records.

Any of those actions could, in fact, violate state or federal law and subject the employer to legal consequences.

So, between the rock—doing nothing—and the hard place—firing the worker—what should an employer do?

However, continuing to employ the worker without further inquiry may lead to a determination that the employee had "constructive knowledge" that a worker is unauthorized to work, a serious immigration law violation.

So, between the rock—doing nothing—and the hard place—firing the worker—what should an employer do?

The administration has posted guidance on appropriate actions, including a sample letter to give the subject workers identified as having mismatched data.

How to Respond

The administration also posted a series of FAQs with progressive steps to take, including:

  • Checking to see if the employer's information matches the name and Social Security number on the employee's Social Security card.
  • If it does not match, ask the employee to provide the exact information as it is shown on the employee's card.
  • If it matches the employee's card, ask your employee to check with any local Social Security office to resolve the issue.
  • If resolved at that stage, the employee must notify the employer of any corrections, and the employer must update its records, including possibly filing a Form W-2c to correct the original W-2, and Form 941-x to update wage reports on the original Form 941.
  • If the mismatch cannot be reconciled within a 30-90 day "reasonable period of time," the employer may have to terminate the worker until suitable documentation can be provided for both I-9 and payroll tax purposes.

For more information, contact CBIA's Mark Soycher (860.244.1138) | @HRHotline

Filed Under: Federal Issues, Wage & Hour

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