By: Michael C. Saqui and Gregory Blueford
As we previously reported, in conjunction with Chris Schulte of CJ Lake, LLC and Rob Roy of Ventura County Agricultural Association, the Social Security Administration (“SSA”) began mailing Educational Correspondence (“EDCOR”) notifications to employers who submit at least one 2018 W-2 with a SSN mismatch or no-match. These notices differed from previous mismatch/no-match letters as they did not include names or SSNs. Instead, employers were only notified that they submitted W-2s with mismatched SSNs and the raw number of W-2 forms the employer submitted that do not match.
The key question that employers had been asking about receiving these letters was, naturally, “What action should I be taking?” There were differing opinions on what steps employers are required to take, one of which was to recommend that employers follow the direction of the EDCOR letter and login to the SSN Business Services Online portal to get the actual names of the employees at issue and take steps to verify the reason as to the mismatch of specific employees.
Taking a more employer-centric approach, Dowling Aaron, CJ Lake, LLC and VCAA put our collective mind power, legal experience and resources together and took the complete opposite approach, recommending that employers should NOT login to the BSO portal and only verify their own records in-house and report to the SSA based on those records.
Yesterday, we received word that our recommendation was correct. In a letter from SSA Acting Commissioner Nancy A. Berryhill to Congressman Jim Costa, the SSA confirmed that the EDCOR mismatch letters are only educational in nature and that the SSA will not take any action, nor are there any SSA-related consequences, for employers’ non-compliance with the EDCOR mismatch letters.
COUNSEL TO MANAGEMENT:
The SSA’s letter to Congressman Costa is attached here for your full review. As outlined in the original guidance from Dowling Aaron, CJ Lake, LLC and VCAA, employers should take the following steps when receiving EDCOR mismatch or no-match letters:
* Employers should NOT login to the BSO to get the actual names of mismatched employees to avoid the possibility of establishing constructive knowledge that the employer was hiring unauthorized workers;
* Employers should, at very most, only take the following steps:
– Review the names and SSN information submitted by the employer to SSA;
– Provide any necessary corrections to SSA on the Form W2-C within 60 days of receiving the no-match, and/or;
– Respond to SSA that the employer has confirmed that the names and SSN information provided match the information provided by its employees.
* Take no further action and to not retain the letter in your files.
The SSA further confirmed in their letter that they are not sharing information with the Department of Homeland Security/ICE and are specifically forbidden to do so under the law and that there are no immigration or work-authorization conclusions to be drawn from the letter. Among the other interesting tidbits in the letter is that the SSA has mailed out 577,349 letters as of April 26, 2019 which covers the mismatches for tax year 2018 and that the SSA will mail out the remaining letters in the fall. Thus, employers should expect a second wave of these letters coming out later this year.
Again, employers should only check their own records for accuracy and should NOT login to the BSO system. However, if employers do receive mismatch/no match letters that do specifically identify employees, there are different requirements that must be undertaken, which are outlined in our original recommendation.