Labor and Employment Law Section

The section focuses on all traditional labor relations issues and matters arising in individual employment rights. A continuing legal education seminar on employment law issues is sponsored annually by the section, as is a regular newsletter.

Chair
Burnette, Dobson & Pinchak
711 Cherry Street
Chattanooga, TN 37402
(423)266-2121
Vice-Chair
Working Boomer Advocate
254 Court Avenue, Suite 212
Memphis, TN 38103
(901)528-8300
Immediate Past Chair
Fisher Phillips, LLP
1715 Aaron Brenner Drive, Suite 312
Memphis, TN 38120
(901)333-2076
Staff Coordinator
Tennessee Bar Association
221 4th Avenue N. Suite 400
Nashville, TN 37219
(615)383-7421

Tennessee Construction Company Ordered to Pay More than $500,000 Following DOL Investigation

Following an investigation by the U.S. Department of Labor’s Wage and Hour Division, Reynolds Baldwin III – doing business as Copperhead Construction LLC – was ordered by the U.S. District Court for the Middle District of Tennessee to pay $501,000 in back wages and liquidated damages to 82 employees to resolve various violations. The department’s investigation details instances when Baldwin and his company illegally altered time records of employees to pay for fewer hours than actually worked and revealed that the company did not pay overtime when employees worked more than 40 hours in a work week. Additionally, Baldwin did not maintain accurate records of hours worked and failed to display required posters in the workplace. Read additional details in the department’s news release.

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No-Match Letters Returning

The Social Security Administration (SSA) has announced, in spring 2019,  it will resume issuance of Employer Correction Request notices, commonly referred to as “Social Security No-Match Letter” or “No-Match Letter." These notifications will be going to businesses that submitted wage and tax statements (Form W-2) that contain name and Social Security number (SSN) combinations that do not match SSA’s records.

I. Why Employers Receive “No-Match Letters?

There are a number of reasons, legitimate and illegitimate, why reported names and SSNs may not agree with SSA’s records, including a misspelled name or SSN with a transposed number; a change in the worker’s name because of marriage or divorce; incomplete information on a W-4 or W-2; or use of compound names that are not perfectly aligned in the government databases. Of course, mismatches could also be due to the use of false SSNs.

Although one should not assume a no-match letter equals an unauthorized or undocumented worker, the former Immigration and Naturalization Service (INS) and its successor, Immigration and Customs Enforcement (ICE), have told employers that receipt of one of these notifications creates an affirmative duty to investigate the discrepancy. And an employer’s failure to follow-up with an employee could lead to a finding of constructive knowledge of unauthorized employment.

II. History of No-Match Letters

Let’s try to put some background to no-match letters. In 1993, the SSA began sending no-match letters in to employers who submitted SSNs that did not match its records.

In 2006, President George W. Bush’s administration decided these discrepancies could be evidence of unauthorized employment. Thus, it issued a regulation setting forth procedures for employers to follow upon receipt of an SSA no-match letter. Employers who followed those procedures were provided a safe harbor from allegations of having "constructive knowledge" of unauthorized employment. Employers who did not may be found to have constructive knowledge of employees’ unauthorized work status.

Before the regulation could be enforced, it was enjoined by a federal court. This litigation continued between 2007 and 2009. The Obama administration rescinded the regulation and suspended all communication to employers regarding data mismatches in 2012.

Despite no regulation, ICE still regards an employer's failure to act upon discovering a Social Security discrepancy as evidence of constructive knowledge of unauthorized employment. During I-9 form audits, Notices of Inspection usually subpoena employers’ records concerning no-match letters.

III. IER’s Position

Another potential problem is the Immigrant and Employee Rights Section (IER) of the Department of Justice, who is responsible for ensuring that employers don’t go too far in their employment verification duties. IER has stated mere receipt of such a no-match letter, without any other evidence, does not give rise to constructive knowledge that an employee is unauthorized to work. Doing so may be considered an unfair documentary practice or evidence of discrimination based on citizenship, national original, or immigration status.

IV. Guidance from IER

In 2011, the predecessor to the IER, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), provided guidance on “do’s and don’ts” related to No-Match Letters. Here are some of these tips:

DO:

  1. Check the reported no-match information against your personnel records.
  2. Inform the employee of the no-match notice and ask the employee to confirm his name/SSN reflected in your personnel records.
  3. Advise the employee to contact the SSA to correct and/or update his SSA records.
  4. Give the employee a reasonable period of time (no specific time period is listed) to address a reported no-match with the local SSA office.
  5. Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
  6. Submit any employer or employee corrections to the SSA.

DON’T:

  1. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
  2. Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new I-9 form based solely on the no-match notice.
  3. Follow different procedures for different classes of employees based on national origin or citizenship status.
  4. Require the employee to produce specific documents to address the no-match.

V. Conclusion

What happens if your employee does not respond to the letter or otherwise act to resolve the issue? Unfortunately, there is no perfect answer. But HR should not bury their head in the sand. Rather, it should proactively work to resolve the problem.

As you see, this will continue to be a difficult issue for employers. Remember if one gets a no-match letter, follow the above guidance and consult with your immigration/employment attorney before taking any action against an employee.


Bruce E. Buchanan is the founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta, where he represents employers in immigration and employment/labor matters and individuals in immigration matters. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Bruce is a 1982 graduate of Vanderbilt University School of Law. He has co-authored a book, I-9 and E-Verify Handbook, 2d ed. (2017) and writes a blog on employer immigration compliance matters located @buchananvisalaw. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.

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