The Social Security Administration (SSA) sometimes sends employers an “Employer Correction Request” or “no-match letter” when the names or Social Security numbers listed on an employer’s Wage and Tax Statement (Form W-2) do not match the SSA’s records. If you work in California and you believe your employer has received such a letter, you may wish to use the sample letter on the next page. This letter is intended for you to give to an employer who has attempted to take action against you—by threatening you, firing you, or discriminating against you in any way—after receiving an SSA no-match letter. If your employer has not yet taken or threatened such an action, but you would like to inform them about no-match letters, please see our other letter entitled “Educational Letter for Employers – SSA No-Match.”
This letter was finalized in July 2020. Legal Aid at Work cannot ensure the information in this sample letter is current, or be responsible for any use it is put to. It is always best to consult with an attorney about your particular situation to determine your rights and the best steps to take when you think your rights may have been violated. If you would like to speak to someone, you can contact our workers’ rights clinics or leave a message with our National Origin and Immigrants’ Rights team at 866-864-8208.
Information for Immigrant Workers
It is illegal for employers to retaliate against any worker because she asserts her workplace rights—for example, by contacting federal immigration authorities. Unfortunately, this type of retaliation does happen, and it can have serious consequences for immigrant workers. If you lack legal status or work authorization in the United States, you should consult with an immigration attorney about the risks employer retaliation could entail for you.
[Letter Responding to Adverse Action / Threat of Adverse Action Based on No-Match Letter]
[DATE]
[YOUR EMPLOYER’S NAME]
[YOUR EMPLOYER’S ADDRESS]
Dear [YOUR EMPLOYER]:
I have been an employee at [PLACE OF EMPLOYMENT] for [# OF YEARS OR MONTHS]. On [DATE] you informed me that there is a problem with my Social Security number (SSN). It is possible that you received a letter from the Social Security Administration (SSA) stating that my name and SSN do not match SSA’s records. This is likely an “EDCOR” no-match letter.[1] SSA is sending these letters to thousands of employers across the country.
Your threat to take an adverse action against me based solely on the receipt of an SSA no-match letter is inappropriate, and it may be illegal under federal or state law. The SSA itself warns you against taking adverse action against me, including “laying off, suspending, firing, or discriminating against” me, just because my information does not match SSA records. If you take or threaten an adverse action against me, or otherwise use this information against me, you could be subjected to enforcement by the U.S. Department of Justice and monetary penalties under other state and federal employment laws.[2]Although no-match letters do not address employees’ work authorization or immigration status, California law also makes it illegal for employers to retaliate against workers based on their immigration status.[3]
I understand that you may have misinterpreted the information the SSA sent you, or be unaware of the laws surrounding this information. If that is the case, I am providing for your convenience the following explanation of what these letters are and how, if at all, you should respond to them.
● What is an “SSA no-match” letter?
A no-match letter, officially called an “Employer Correction Request” notice, is an educational letter intended to inform an employer about a discrepancy between the information the employer filed and the SSA’s records. The letter’s purpose is to ensure that employees’ earnings records are accurate, so that they can receive the full Social Security benefits they are entitled to.
● Does receipt of an SSA no-match letter serve as notice of wrongdoing by an employer or employee?
No. A discrepancy may exist for many reasons, including typos, clerical errors, or unreported name changes. The SSA letter states: “This letter does not imply that you [the employer] or your employee intentionally gave the government wrong information about the employee’s name or SSN.”[4]
● Does getting an SSA no-match letter mean that an employee is undocumented or otherwise not authorized to work?
No. As noted above, discrepancies may arise for a number of reasons. Moreover, the letter states: “This letter does not address your employee’s work authorization or immigration status.” The U.S. Department of Justice also stated that employers should not assume that any named employees have an issue with their immigration status.[5]
● What should employers who receive a no-match letter do?
The no-match letter and its attachment provide instructions on how to identify and correct name and SSN mismatches. Employers should provide employees a copy of the letter so they can help ensure the SSA has accurate information. The SSA provides further information on its website, which contains sample notices, step-by-step instructions, and FAQs: https://www.ssa.gov/employer/notices.html.
As stated in the SSA letter: “Do not take adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because this letter identifies a mismatch between his or her SSN or name as reported to us.”
● Is an employer required to submit corrections? Is there a deadline?
No. Employers are not required to take any action. There is no deadline, and “no further action” that employers must take.[6] Furthermore, the SSA has stated that it is not a law enforcement agency and, in early June 2019, confirmed with Congressional officials that it “does not take any action, nor are there any SSA-related consequences, for employers’ non-compliance with [no-match] letters.”[7]
● Does the SSA share any information about employers and employees whose records do not match with other agencies?
According to the SSA, no-match letter data is protected federal tax information and, therefore, the SSA is “prohibited from sharing this information with other agencies unless for a specific purpose authorized under [Internal Revenue Code section] 6103.”[8] The SSA does share no-match information with the Internal Revenue Service (IRS), however, because the SSA is considered an agent of the IRS.
* * * * *
In light of the above, please confirm that you will no longer utilize your receipt of an SSA no-match letter against me or as a cause for any adverse employment action. I look forward to my continued employment with [PLACE OF EMPLOYMENT].
Sincerely,
[YOUR NAME]
[1] SSA Employer Correction Request, https://www.ssa.gov/employer/notices/EmployerCorrectionRequest.pdf.
[2] Department of Justice FAQs state that taking adverse action against an employee “could subject the employer to liability under the anti discrimination provision of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1324b.” https://www.justice.gov/sites/default/files/crt/legacy/2010/12/29/FAQs.pdf.
[3] Cal. Lab. Code § 1019. It is unlawful for employers to report or threaten to report the immigration status of employees or their families as a means of retaliation. Cal. Lab. Code § 244(b). Such behavior could result in the suspension or revocation of business licenses. Cal. Bus. & Prof. Code § 494.6. Using immigration status as a means to manipulate individuals could also subject employers to criminal prosecution. Cal. Pen. Code § 518. Adverse employment actions taken against only certain employees based on protected identities such as race or national origin are also unlawful. See Fair Employment and Housing Act, Cal. Gov’t Code § 12900 (West).
[4] Sample Social Security Administration Retirement, Survivors, and Disability Insurance Employer Correction Request, available at https://www.ssa.gov/employer/notices/EDCOR%20Letter%20-%20Final%209-16-19508.docx.pdf.
[5] Department of Justice, Frequently Asked Questions about Name/Social Security Number “No Matches,” https://www.justice.gov/sites/default/files/crt/legacy/2010/12/29/FAQs.pdf.
[6] Social Security Administration, Attachment – Helpful Information about Our Free Online Wage Reporting
Services, available at https://www.ssa.gov/employer/notices/EDCOR%20Letter%20-%20Final%20-%20Attachment%20-%209-16-19_508.pdf.
[7] Social Security Administration Acting Commissioner Nancy A. Berryhill, Letter on Educational Correspondence (EDCOR)/Employer Correction Request (i.e. “no-match”) letters addressed to Hon. Jim Acosta (June 3, 2019).
[8] Social Security Administration, Questions Employers Ask for the Employer Correction Request Notice, available at https://www.ssa.gov/employer/notices/Questions%20Employers%20Ask%20Final.pdf.