In Aramark v. SEIU, the Ninth Circuit Court of Appeals affirmed the ruling of an arbitrator that Aramark improperly discharged 33 employees at the Staples Center stadium in Los Angeles for failing to provide proof of a valid Social Security Number ("SSN"). The Social Security Administration had sent "no match" letters to Aramark notifying the employer that the employees' SSNs did not match the government's database. Aramark gave the affected employees three days to provide proof that they had begun the process to correct the problem, and discharged those who did not timely comply out of concern that the employees were not authorized to work in the U.S. In affirming the arbitrator's decision, the court ruled that the three-day deadline was unreasonably short. In support, the court cited the federal regulation (currently subject to an injunction) that provides a safe harbor procedure for employers who receive a no-match letter, i.e., the employer should ask the employee to provide further SSN documentation within 90 days, and even if the employee cannot resolve the SSN discrepancy within 90 days, the employer may satisfy the safe harbor requirements – and thereby avoid prosecution for employing undocumented workers – by completing a new Form I-9 (but with documents that do not depend on the disputed SSN). This is a complex and evolving area of law, and we encourage employers who receive "no match" letter to contact counsel.
