Work in the Time of COVID-19: FAQs for Employers

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The largest raid conducted by Immigration Customs and Enforcement (ICE) in over a decade took place in Allen, Texas last month with 200 US immigration agents descending upon the company. Interestingly, search warrants were served on both the business and four of its staffing companies. This was the culmination of a criminal investigation of CVE Technology Group (CVE), leading to the arrest of 284 of its workers. How did CVE get onto ICE’s radar? Within the past year, ICE had received “many tips” that the business was hiring workers who were using fraudulent documents. Further, an audit by Homeland Security of CVE’s records, presumably Forms I-9, showed “hiring irregularities”.

CVE has understandably tried to pin the blame on its staffing agencies that contractually assumed responsibility that they were sending employment authorized individuals to work at CVE. However, in addition to the disruption and inconvenience of possibly losing a significant portion of its workforce, employers can bear responsibility if they knew or should have known that the staffing agencies were not properly verifying employment eligibility. The US Attorney’s Office for the Eastern District of Texas has declined to comment if the owners of CVE will face charges.

These workplace raids have become more common under the Trump Administration. Homeland Security investigations opened 6,850 workplace investigations in 2018, up from 1,700 the year before. ICE also made 800 criminal arrests in 2018, up from 140 in 2017. According to Pew Research Center, of the 11 million estimated immigrants who are unlawfully present in the US, 8 million form part of the US labor force. It is the employer’s actual or constructive knowledge that it is employing workers with fake documents that incurs liability. One early indication that there may be a problem is a Social Security No-Match Letter.

After a hiatus of 7 years, the Social Security Administration (SSA) has recommenced issuing “Employer Correction Request Notices” to employers whose employees may have a social security number or name on the Form W-2 that does not match SSA records.*

The Immigration and Employee Rights Section of the Department of Justice has warned employers that the mere receipt of a No-Match Letter is not an indication that the employee is working illegally. To be clear, a No-Match Letter is not constructive knowledge to the employer that there is a problem. However, receipt of such a letter places an affirmative duty on the employer to follow up with the employee. As explained in the No-Match Letter, the employer should check online at the Business Services online website. After checking its records for any misspellings, transposed numbers or name changes, the employer can then file the W-2C online to make any corrections.  If the employer is unable to file the W-2C without checking with the employee, it must meet privately with the employee to ascertain if either the name and/or social security number are incorrect. If the employee is unable to identify an error, the employer must refer the employee to the local SSA office to resolve the issue. A clear memo explaining the situation and asking the employee to go to the local Social Security Administration, whose address and contact information can be provided, should be given to the employee who, upon receipt, should sign and date a copy, signifying receipt. Documentation of this step, and indeed every step, is important.

Contacting the SSA and resolving any issues can take time. While no specific time frame to resolve the issue is required to be granted by an employer to its employee, the SSA does allow 120 days in the E-Verify context when there is a tentative non-confirmation, so that time period would appear to be a reasonable period of time. Optimally, the response should be within 60 days, but if this is not possible and the employee reports he/she is working on it, the employer must give more time. During this time, the employee must be allowed to pursue this resolution with the SSA without his or her employment being jeopardized.

The employer should maintain contact every 30 days with the employee to check on any progress being made, keep contemporaneous notes, and, once resolved and the information provided by the employee, submit the W-2c to the SSA and correct the I-9 form. Depending upon the relevant section of the I-9, either the employee or the employer’s authorized representative must make corrections by crossing out the error,writing the correct information above it, and initialing and dating the margin of the form next to where the change was made.

Cheat Sheet for Receipt of SSA No-Match Letter

  1. Read and understand the letter.
  2. Log onto Business Services Online to learn the names of those whose social security numbers do not match, and if possible, provide SSA with Form W-2C for each employee whose no-match can be resolved by internal records search.
  3. Review what are the company policies about Social Security Number no-matches, providing false information, etc., to meet the same or, after this situation is resolved, consider revising with legal input.
  4. Meet individually with each affected employee, providing them with an explanatory and instructive memo in a language they can understand, including a statement that they remain employed and this is not necessarily an indication that they are not employment authorized. Have the employee sign and date a copy of the memo for the employer to retain.
  5. Keep contemporaneous notes of any and all meetings with the employee, following up every 30 days if they do not initiate a meeting. Attempt to complete the process within the 60 days provided by the SSA in the No-Match letter.
  6. Respond to the SSA with a W-2C or other explanation.
  7. Decide whether employees, who have not been able to resolve the issue after being given ample opportunity to do so, should be terminated.
  8. Do not request affected employees to complete new Form I-9s.
  9. Perform an internal I-9 audit and ensure that all employees have accurate and complete I-9s.

Click here to view a Sample No-Match Letter.

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