THE NEW DEPARTMENT OF HOMELAND SECURITY REGULATIONS AND ITS EFFECTS ON BOTH EMPLOYERS AND EMPLOYEES

On August 16, 2007, the Department of Homeland Security (DHS) issued new regulations relating to the procedures an employer will be required to follow after receiving a Social Security Administration (SSA) “no match” letter.[1]  A “no match” letter advises the employer that it has submitted a W-2 form in which the combination of name and social security number does not match SSA records.  The regulations also address “Notice of Suspect Documents” which are issued by DHS to notify employers that DHS has been unable to confirm that an immigration status document or employment authorization document used by an employee in completing an I-9 form was actually assigned to that person.[2]  These final regulations replace the proposed regulations issued in June 2006.

Under the new regulations, an employer will be deemed to have constructive knowledge of the employee’s unauthorized status if the employer fails to take reasonable steps after receiving a “no match” letter from SSA or a “Notice of Suspect Documents” from DHS. The regulations require employers to take action to attempt to resolve the discrepancy within 30 days of receipt of the “no match” letter or “Notice” from the SSA and/or DHS.  An employer that is deemed to have constructive knowledge can be subject to civil or criminal penalties.

Consequently, the new regulations will affect employers' responsibilities in verifying workers' employment authorization.  Moreover, although employers need to comply with these new rules, they must be careful not to violate an employee’s rights.  For example, if the employee fails to resolve the SSN or DHS discrepancy, the employer does not have an automatic right to terminate the employee.

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Jackson & Campbell 's Employment Law Practice Group can help companies understand the potential implications of these new regulations. We can advise employers on how to comply with the new rules and thus avoid any potential liability arising from violating an employee’s rights in the process of complying with these new regulations.

The contents of this Employment Law Alert are intended for general informational purposes only and should not be considered legal advice. Moreover, the mailing of this Employment Law Alert is not intended to create nor does it constitute an attorney-client relationship.

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