Employment Law Update

By Jones Waldo09.09.2019

The Social Security Administration (SSA) just announced its plan to mail a second set of “no-match letters” to employers this fall. These notices request employers to reconcile wage reports and credit employees’ earnings to their Social Security records, stating there is a mismatch between certain employees’ information on Forms W-2 and the SSA’s database. They give employers 60 days to submit necessary corrections on the Form W-2C.

These letters may be intended to create concern regarding potentially unauthorized employees, and/or to cause such workers to “self-deport.” However, it is important for employers to recognize that the letter does not mean that a person is not authorized for employment. In fact, an employer cannot use the letter alone as a reason to suspend, fire, or discriminate against an employee, just because the Social Security number or name does not match SSA records. In fact, mismatches could result from a variety of reasons, including typographical errors, name changes, fraud and identity theft. In addition, the SSA is not an enforcement agency, either with respect to social security mismatches, or federal immigration law. However, an employer should take appropriate action after receiving a no-match letter, because it can create potential liability for continuing to employ an individual who is not authorized to work in the United States. 

The SSA instructs employers who receive no-match letters to register online through the agency’s Business Services Online system at https://www.ssa.gov/bso/services.htm.Registering is the only way to view the names and Social Security numbers that need correction. Employers should then inform affected employees of the no-match notice, ask them to confirm the name and SSN reflected in their employment records, and ask them to contact the SSA to correct their records if needed. In contrast, if the employer’s records are incorrect, the employer should submit any needed corrections to the SSA.

Upon receiving a no-match letter, it may be advisable to review the employee’s I-9 and payroll records to ensure that they are consistent. However, employers should not to attempt to re-verify the employee’s employment eligibility by requesting the worker to complete a new Form I-9, to produce specific documents, or to provide verification of a resolution with the SSA.

NLRB Publishes Guidance Memo on Social Media Policies

The National Labor Relations Board (NLRB)—the federal agency that enforces the National Labor Relations Act (NLRA)— has been quite active regulating employment policies, even for non-union workplaces.  In a guidance memo published on August 15, 2019, the NLRB takes aim at the social media policies of CVS Health. CVS Health maintained a policy in its handbook that employees “who choose to mention or discuss their work, CVS Health, colleagues, or CVS Health products or services in personal social media interactions must identify themselves by their real name and, where relevant, title or role.”  The NLRB ruled that this policy was unlawful and explained that “requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.” 

CVS Health also maintained a policy that “it is not permissible to disclose [employee information] through social media or other online communications.” The NLRB ruled this policy was also unlawful because the policy did not define the term “employee information.” The NLRB explained that this policy “contains no limiting context or language that makes clear that ‘employee information’ does not include employee contact information or terms and conditions of employment …. While the Employer has a legitimate business interest in keeping … employees’ personal and medical information confidential, it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions, or employment disputes.” 

 If you have not updated your social media policy recently, or if you have not yet adopted such a policy, the NLRB’s guidance memo will be a great starting point.  You will find the NLRB’s memo here: https://www.nlrb.gov/news-publications/nlrb-memoranda/advice-memos/recently-released-advice-memos (CVS Health, Case No. 31-CA-202972, Release Date 8/15/2019). 

Jones Waldo is a Utah-based legal firm that provides services to a variety of businesses, including financial institutions. Content written by employment attorneys Michael Patrick O’Brien, Mark D. Tolman, and Marci B. Rechtenbach.