The Social Security Administration (SSA) recently began again issuing Employer Correction Request Notices (“Educational Correspondence” or “EDCOR”), also referred to as “no-match” or “mismatch” letters.

Following controversy and litigation over the Department of Homeland Security’s (DHS) proposed use of EDCOR letters as evidence in I-9 and workplace enforcement efforts, the SSA discontinued the use of EDCOR letters in 2012.

The new letters resemble those of the past but also differ in a number of ways. Most significantly, they are now sent to a much larger group of employers, and they omit names and SSNs of the relevant employees (directing employers instead to log in to the SSA’s Business Services Online, or BSO). Any employer that receives an EDCOR letter should treat it seriously; carry out any response in a careful, consistent, and timely way; and document its response.

EDCOR letters are meant to “educate” employers about inaccurate earning records and ensure that employees receive the benefits they have earned. There is no legal requirement for employers to act in response to the letters and the SSA does not penalize employers who fail to follow up.

However, if DHS conducts an I-9 audit, it will likely ask if the employer has received an EDCOR letter and for evidence of compliance. As in the past, ICE will likely consider whether an employer took appropriate steps during an I-9 audit when assessing any I-9 penalties. Therefore, it is recommended that employers follow the SSA’s instructions, create an account, log in to the BSO system, review the no-match report in a timely manner, and document their efforts to resolve any discrepancy per the letter’s instructions. Specifically:

• Understand that there are a variety of reasons why the SSA may identify a mismatch that are unrelated to a person’s immigration status (e.g., change in name or simple typographic mistake). Importantly, do not take adverse action (e.g., suspend or fire) against any employee based solely on an EDCOR letter, even if they are not able to resolve the discrepancy. Treat all employees consistently. Over-compliance, including asking an employee to present new or different evidence of work authorization, can violate federal law and lead to legal action.

• As soon as possible after receipt of the letter, visit the BSO website, register, and create an employer account.

• Review the SSN no-match report listing the names and SSNs for all employees with mismatches.

• Compare the information on the report with the name and SSN listed on each employee’s W-2.

• If you find a discrepancy between the W-2 and the online report, file a Form W-2C online to correct the error.

• If there is no discrepancy, follow up with the employee and attempt to correct the mismatch. Ask the employee to check his or her Social Security card and compare it with the information in the BSO report and the company’s personnel records.

• If there is a discrepancy between the report and the employee’s Social Security card, resubmit the corrected data online via Form W-2C.

• If the discrepancy is still not resolved, direct the employee to contact their local SSA office to resolve the issue. Ask them to contact you if there are any changes and resubmit the corrected information online.

• If the employee is not able to resolve the mismatch with the SSA or provide you with a verifiable SSN, follow up with them every 30 days and document your efforts. Even if the discrepancy is never resolved, do not take adverse action based upon the mismatch alone.

• If during the process the employee voluntarily discloses that they don’t have lawful immigration status or work authorization, the employer should follow the same recommended steps for whenever an employer gains actual or “constructive” knowledge that a current employee does not possess valid work authorization.

Finally, with the return of the EDCOR letters and a significant increase in the amount of workplace enforcement activities conducted by DHS, employers should self-audit their I-9 records now.

Brad Maier is a business and compliance attorney at Schwabe, Williamson & Wyatt. He helps clients make sense of U.S. immigration and customs laws. He can be reached at bmaier@schwabe.com or 503-796-2440.

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