[vc_row][vc_column][vc_column_text]Published May 30, 2019

 

When a company lists an employee on their payroll, pays payroll taxes and issues them a Form W-2, the federal government is officially notified of that individual’s status as a U.S. worker.    For an estimated 8 million workers though, this process is an avenue through which the federal government is UNofficially notified of the employment of undocumented workers.  That is because many of these workers are either providing fake names, fake social security numbers or another person’s identification – all necessary means for the employer to offer them a job and for the worker to take the job.   For the first time in 7 years, the Social Security Administration (“SSA”) is again issuing letters advising employers of the workers listed on their payroll that do not match up to records in the SSA system, and with instructions for employers to investigate and clear up any discrepancies.

Importantly, the issuance of these letters is not a determination that the named “no match” employee is undocumented or must be terminated immediately.  In fact, employers are forbidden from relying on a “no match” notification as the sole basis to let go of an identified employee.  In fact,  if that is learned to be the sole basis for employee termination,  the employer may face liability for unlawful discrimination.   On the other hand, an employer cannot simply ignore the “no match” notification, although the extent to which the notice is not ignored, may lead the employer to face significant operational challenges.

More specifically, with the issuance of these letters, the SSA puts employers in a classic “between a rock and a hard place” situation.  If the employer takes no action whatsoever to at least inquire or investigate the identified “no match” employees, or otherwise respond to the SSA in one way or another, the employer may be deemed to be willfully ignorant of their employee’s immigration status.   In such a case, the employer may face the possibility of steep fines to be issued by either SSA or immigration authorities.  On the other hand, if the employer takes too aggressive of an approach to confront identified “no match” employees, they face the very real possibility that the employees in question will leave the job, due to their reality of being undocumented and perhaps fearful of being deported.    

With unemployment levels at record low numbers and a severe shortage of workers to fill jobs in the manufacturing, construction, healthcare, restaurant, hospitality and numerous other industries across the board, our economy is in the midst of a real crisis.   All of these industries rely heavily on immigrant workers in the U.S., both documented and undocumented, and without a path to legalization for the undocumented, and more legal avenues for employers to fill jobs with foreign workers, employers will have to continue to rely heavily on fake identity and employment authorization credentials to give them legal cover.  Time will tell whether our society is prepared to implement the obvious, appropriate legislative solution to this problem. 

 

PUBLISHED May 30, 2019– “IMMIGRATION LAW FORUM” Copyright © 2019, By Law Offices of Richard Hanus, Chicago, Illinois[/vc_column_text][/vc_column][/vc_row]