What to do Upon Receiving a "No Match" Letter from Social Security

Posted by Edward Sharkey on Thu, 07/05/2012 - 16:47

When businesses hire a new employee, the government gets notice of his name and social security number. If they do not match the government's data, the Social Security Administration sends the employer a "no match" letter. This can be the result of government error. It can also mean the employee is using a false social security number.

The government has not given businesses guidance on what to do about it. The Department of Labor merely suggests that businesses give the employee time to resolve the issue with the government. It has not said what to do if that does not work.

This leaves businesses faced with two options. Retain the worker at the risk of liability for employing an unauthorized worker. Or terminate the worker at the risk of a discrimination claim if he is in a protected class (such as being a foreign national).

A recent opinion, from a federal appeals court has provided a little clarity. It suggests that an employer who terminates a worker due to immigration status will not be violating federal anti-discrimination law.

In the case, a bank employee helped her husband, an alien in the U.S. illegally, to open banking accounts. When the bank discovered it, it became concerned about fraud. It eventually fired the employee. She sued, claiming she was terminated because she was married to a foreign national.

The court dismissed the lawsuit. The court of appeals explained that “national origin,” which can be the basis for a discrimination claim, is defined as “the country from which you or your forbearers came.” This is different from "alienage" or a person's immigration status. Alienage is not a protected class. If a business fires a worker because it believes he is an illegal alien, the employee has no claim for discrimination.

The takeaway: while the distinction between national origin and alienage is narrow, a business that gives an employee leeway to address a "no-match" issue could reasonably consider termination if it is not resolved and the business is concerned about keeping an illegal worker. The decision in each case should be made on the basis of the specific facts.

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