DO NOT Immediately Fire the Employee
The Department of Homeland Security (DHS) has made it clear that employers should NOT fire employees based simply on receipt of a no-match letter. Instead, follow the steps in this Legal Guide to properly handle the situation.
Review Your Files for Simple Mistakes
Many times, no-match flags are raised based upon administrative and typographical errors. The first thing you should do is review your files to ensure that the DHS was working with the right information. Did you incorrectly record your employee's Social Security Number? If so, you can stop here and make the correction with the DHS. This may resolve the issue. If no clerical errors were made, move onto the next step.
Send Written Notice To Your Employee
Provide your employee with written notification that the SSN provided is reportedly incorrect. The written notice should point the employee to the Social Security Administration, where they can resolve the issue, and provide them with a reasonable time frame (14-90 days) to work out the errors.
Followup with Your Employee
After the time frame to correct the issue with the SSA expires, you should followup with your employee. If the employee has the issue corrected, great. If not, document the good faith steps you've taken to comply with the SSA / DHS requirements.
Terminate, Carefully
If the employee cannot provide evidence that the issue is resolved or soon to be resolved, termination is likely the only answer. Be sure you have taken the steps in this Legal Guide, or other steps required by the DHS / SSA, to avoid potential liability under the anti-discrimination provisions of 8 U.S.C.§ 1324b. The Justice Department’s Civil Rights Division provides guidance to employers on how to respond to a no-match letter without engaging in prohibited discrimination (in the web links below).
