Social Security Number No-Match
Collective bargaining agreements continue to be the best protection for workers threatened with adverse employment actions due to social security number mismatch or “no-match” discrepancies. Generally, there are two ways in which a social security number (SSN) “no-match” issues arises: (1) the employer receives a letter from the Social Security Administration (“SSA”) advising it of a discrepancy between the SSN that the employer reported and SSA’s records; or (2) the employer verifies the worker’s SSN through the SSA database and generates a “no-match.”
Employers are required to report wage earnings for its employees on forms W-2 to the SSA. When SSA is unable to credit the reported earnings due to a discrepancy between the SSN submitted by the employer and SSA’s records, the SSA attempts to correct the discrepancy by sending a letter to the employer, commonly referred to as a “no-match” letter. The no-match letter is not a notice about a worker’s immigration status and an employer is not to take adverse action against a worker based on receipt of a no-match letter.
Many arbitrators have held that firing workers based on receipt of a no-match letter violate the just cause provisions of collective bargaining agreements. For eg., Aramark Facility Services & SEIU Local 1877, (G. Marshall 2005) aff’d Aramark Facilty Services v. SEIU Local 1877, 533 F.3d 817 (9th Cir. 2008); Laborer’s Local Union No. 25 & Utility Concrete Products, (S. Bierig 2008); Seneca Foods Corp. and UFCW, Local P-199 (FMCS No. 02-12654 (Jay 2004).
Employer Self SSN Verification
Employers can ensure that they are correctly reporting earnings for its employees by using the SSA’s internet-based systems to verify that SSN’s of their employees match SSA’s records. The two systems are (1) the Social Security Number Verification Service (“SSNVS”) and (2) Consent Based Social Security Number Verification (CBSV). Using SSNVS an employer can input the information and receive “no-match” information from the SSA. Using CBSV, the employer has a third party check the SSN’s. However, in order for the third party to verify employee SSN’s under CBSV, the employee must sign an authorization form allowing for her SSN to be verified. It is very important that workers not sign the CBSV forms, as there is no obligation under federal law that workers have their SSN’s checked by employers using this system.
Self-SSN verification results in the same information as a “no-match” letter – simply that the information provided does not match SSA’s records. Therefore, it is not a notice of wrongdoing on behalf of the worker, nor is it a notice about immigration status. As such, arbitrators have also held that no-match information received from self-SSN verification by employers do not constitute just cause to support the termination of employees. Service Performance Corp. v. SEIU Local 1877, (G. McKay 2005). Recently, arbitrator Flagler also held that Sodexo lacked just cause to terminate the grievants based on no-match information that the employer obtained through SSNVS. In Sodexo, Inc. & UNITE HERE Local 17, (J. Flagler 2010), the arbitrator dismissed the company’s arguments that the employer ran the risk of having fines imposed by the Internal Revenue Service (“IRS”) based on employee SSN discrepancies, and that because of the risk of fines and the employees’ failure to correct the SSN discrepancies, it was required to fire the workers.
See Guizar, Monica, et al. Social Security No-Match Letters and Collective Bargaining Agreements, California Lab. & Emp. Law Review, Vol. 20, No. 2 (April 2006), available at http://www.calbar.ca.gov/portals/0/documents/rfp/2006_Employ-Law-Review-Edit_RFP_attachB.pdf.
In 2007, DHS attempted to issue and finalize a rule requiring employers to take certain steps upon receipt of a “no-match” letter from SSA or be subject to a finding of “constructive knowledge” if the employer did not fire workers who received such letters and did not correct the discrepancy. Due to litigation challenging the rule, AFL-CIO, et al. v. Chertoff, et al., (N.D. Cal. 2008), DHS rescinded the no-match rule on October 7, 2009. See 74 FR 51447 (2009) available at http://www.gpo.gov/fdsys/pkg/FR-2009-10-07/pdf/E9-24200.pdf.