No-Match Letters and Regulations

I don't know if you have been reading about the no-match letter issue and new regulations. A no-match letter is where the Department of Homeland Security (DHS)sends a letter to an employer advising it that an employee may be using an improper SSN. The SSN does not match what the DHS has on file - the person's name and SSN do not match up. Of course, every employer should verify a person's right to work in the US before allowing him/her to perform services. Within 48 hours of hire, an employer should present form I-9 to the prospective worker. If you receive a no-match letter, you are required to respond. Getting a no-match letter does not mean that your employee gave a false SSN; it could mean that the person has changed their name (by marriage, for example) or there could be a typo on a filed document (like a transposed number on a W-2). You have to give the employee an opportunity to verify and correct the potential error.

On August 15, 2007 DHS issued a regulation entitled “Safe Harbor Procedures for Employers who Receive a No-Match Letter.” The amended regulation describes the obligations of an employer, under current immigration law, when the employer receives a no-match letter from the Social Security Administration or DHS. It also describes "safe-harbor'' procedures that the employer can follow in response to such a letter so that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States.

The proposed rule also states that whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien in any of the regulation's examples will depend on the totality of relevant circumstances. The "safe-harbor'' procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through a specified process.

On August 31, 2007 a California federal trial judge has issued a temporary restraining order prohibiting the DHS from mailing no-match letters or taking any other action to implement its new regulation. See AFL-CIO v. Chertoff (N.D. Ca. Aug. 31, 2007).

A copy of the regulations is at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-16066.htm.

The injunction does not mean that employers should not continue to diligently verify whether a worker may be lawfully employed, nor does it mean that you should ignore a n0-match letter if you receive one.

Stay tuned for updates on this matter.

Train, train, train

It amazes how companies can spend thousands of dollars are marketing, branding and the like, but zero time and expense on training. As many of you know, a "best practices" as an employer includes regular training for management and staff on complying with the company's policies and procedures. It is a good idea to periodically confer with counsel on whether your training presentations, employee handbook or other policies are in need of updating. One area that a company should regularly focus on is harassment prevention. When most people think of harassment, they think of sexual harassment only. However, the law covers all kinds of harassmsent, including on the basis of religion, race and even sexual orientation. In some states, such as California, companies are required to conduct mandatory annual sexual harassment training. I advise my clients to conduct at least two training sessions a year that all employees have attend. Aside from harassment, your company should choose a topic that is of concern and that is a potential issue, but you should never single out an employee or a specific situation when training. Keep it generic. When I am asked by a client to conduct training, I also use visual and written materials. While I give specific examples of violations, or inappropriate behavior, the examples are never "personal"; they remain generic.