Government has not defined the required 'reasonable response'
By DAN WHEAT
The federal government is issuing Social Security number no-match letters again, which means it is strengthening its position for I-9 audits, says a Seattle labor attorney.
"This is the most significant development since the government announced 1,000 new I-9 audits on Feb. 17," said Gregg Rodgers, an owner at Garvey Schubert Barer law firm in Seattle.
But while Rodgers and Dan Fazio, director of the Washington Farm Labor Association, agree employers should give workers time to resolve Social Security number discrepancies, they disagree on employers keeping the letters and a paper trail of actions.
After a four-year suspension, the Social Security Administration began issuing no-match letters on April 6. The letters notify employers of workers using Social Security numbers that don't match records. Discrepancies can be clerical errors or indications that workers are not legal.
Resumption of the letters, an increase in audits of employment eligibility verification I-9 forms, and an update of a government I-9 audit handbook are "all leading me to conclude the government is getting fully prepared for stronger audits," Rodgers said.
The government is sending no-match letters so it can establish how employers have complied with the letters when it does the audits, he said.
Employers should keep the letters and document how they responded to each one, Rodgers said. It's best if employers can show they responded responsibly by notifying employees of the no-match and giving them reasonable time -- commonly thought to be 120 days -- to resolve discrepancies, he said.
But Fazio recommends getting rid of the letter and keeping no documentation unless the employer has a policy of ultimately firing employees who cannot produce adequate documents.
"Give a copy of the letter to the employee and explain their obligation to resolve it. You may in fact be following the law. No one really knows what a reasonable response is," Fazio said.
"But get rid of the letter because it can be evidence for ICE (U.S. Immigration and Customs Enforcement) to come back and charge that you had constructive knowledge the person was undocumented and that you didn't do enough," he said.
Fazio said he's had close to 20 e-mails, mostly from tree fruit growers, including large companies, concerned about what to do with new no-match letters. He said one received 160 no-match letters over two days.
Fazio is holding webinars May 24 and 26 on no-match letters and how they impact employer I-9 policy.
ICE stepped up I-9 audits because they net a lot of money and are done quietly, Rodgers told people at a Washington Farm Bureau labor conference in Ellensburg on Feb. 16.
Each little typo or mistake on an I-9 form can cost an employer up to $1,100 in federal fines and businesses have been fined as much as $400,000, he said.
Every employee hired after Nov. 6, 1986, has been required to fill out the form and provide proof of identity and eligibility to work in the United States. Employers have three days to examine the documents and complete the form.
Most of the audits announced Feb. 17 are of restaurants and target jobs with high turnover, low skill and language issues, Rodgers said.
Key agencies, including ICE and SSA, seem to agree that receipt of a no-match letter is not evidence of using fraudulent documents and that employers should give employees time to resolve discrepancies, according to the American Immigration Lawyers Association.
What to do if you receive a âno-matchâ letter
â¢ Recognize that name-Social Security number no-matches can result because of simple administrative errors.
â¢ Check reported no-match information against your personnel records.
â¢ Inform the employee of the no-match notice.
â¢ Ask the employee to confirm his or her name and Social Security number reflected in your personnel records.
â¢ Advise the employee to contact the Social Security Administration to correct and update the records.
â¢ Give the employee a reasonable period of time to address a reported no-match with the local Social Security Administration office.
â¢ Follow the same procedures for all employees .
â¢ Periodically meet with or contact the employee to learn and document the status of the employeeâs efforts to address and resolve the no-match.
â¢ Submit any employer or employee corrections to the Social Security Administration.
â¢ Assume the no-match conveys information regarding the employeeâs immigration status or actual work authorization.
â¢ Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against an employee.
â¢ Attempt to immediately reverify the employeeâs employment eligibility by requesting the completion of a new I-9 form based solely on the no-match notice.
â¢ Follow different procedures for different classes of employees based on national origin or citizenship status.
â¢ Require the employee to produce specific documents to address the no-match.
â¢ Ask the employee to provide a written report of Social Security Administration verification.
For more information, contact the Office of Special Counsel at 800-255-8155 or www.justice.gov/crt/osc
â Office of Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice