January 2012 Statement - (Page 16)
The government confirms that your client’s foreign worker is not using a valid SSN. A simple solution, right?
BY EDWARD E. SHARKEY, ESQ. It is illegal, pursuant to federal immigration law, for an employer to knowingly employ an unauthorized worker. It is also illegal to discharge an employee based on national origin. As a result of these two principles, it is unclear what an employer should do upon receipt of a no-match letter for an employee of foreign origin (or any protected class). In 2011, the Social Security Administration resumed the practice of issuing no-match letters to advise employers when the name or Social Security number reported for an employee does not match the SSA’s records. A nomatch situation may arise when an unauthorized worker uses a fake SSN or a number assigned to someone else. For this reason, ignoring a no-match letter could subject an employer to liability for knowingly employing an unauthorized worker. Terminating an employee due to receipt of a no-match letter, however, could subject the employer to a discrimination claim if the employer is part of a protected class. This is so because no-match situations may also arise as a result of mistake or unreported name change. Unfortunately, the government has not issued clear or consistent guidance for an employer who has received a no-match letter. For example, guidelines issued by the Department of Justice, available at http://tinyurl. com/4al7xcq, tell employers not to use a no-match letter as the sole basis for taking any adverse action against a worker. Instead, the guidelines tell employers to permit the worker reasonable time to cooperate with SSA to resolve the no-match. The Department of Justice fails to offer guidance to employers in the event that the employee is unable to resolve the no-match issue with SSA. As a result, even after following the Department of Justice’s guidance, an employer could find himself back at square one, with two unattractive options: • continue to employ the worker at the risk of being accused of knowingly employing an unauthorized worker; or • terminate the employee at the risk of being accused of discrimination. We are continuing to monitor the government’s guidance on this issue. If you have any questions about this topic, please feel free to contact us. Edward E. Sharkey is founder of the Law Office of Edward E. Sharkey, LLC, a Bethesdabased firm focusing on business transactions, including the negotiation and documentation of business financing. He can be reached viawww.sharkeylaw.com.
Table of Contents for the Digital Edition of January 2012 Statement
January 2012 Statement