Fake Social Security Numbers, "No-Match" Letters, and WC Fraud
This post is slightly off the topic of Florida workers’ compensation law, but I wrote here about the debate over whether an employee has committed “fraud” under §440.105(4)(b)9 - thereby justifying the termination of his workers’ compensation benefits pursuant to §440.09(4) - if he has deliberately provided his employer with false evidence of his identity in the form of a fake Social Security number. But what if the employer actually knows or has reason to know that the Social Security number is a fake and continues the claimant’s employment anyway? Should an employer (or its carrier) be able to profit by denying the compensability of an otherwise compensable workers’ compensation claim based on such “fraud” if the employer itself had knowledge of the “fraud” all along? Obviously, all of this is tied in with the current national debate over illegal immigration and what should be done about it.
Actually, 8 U.S.C §1324a(a)(2) makes it unlawful for an employer either to “hire” or to “continue to employ” an alien “knowing the alien is (or has become) an unauthorized alien with respect to such employment.” The key word here is the word “knowing,” because 8 C.F.R. §274a.1(l)(1), the regulation implementing the statute, defines “knowing” as having either “actual” or “constructive” knowledge.
When an employer sends its annual W-2 forms to the Social Security Administration (“SSA”), an employee’s reported name and Social Security number sometimes do not match the SSA’s records. In some of those cases, the SSA will send the employer a letter – known as a “no-match” letter - informing the employer of the mismatch. Under this proposed amendment to the regulation, the Department of Homeland Security would make the receipt of such a letter evidence of the employer’s “constructive” knowledge of the employee’s illegal status unless the employer complies with the regulation’s “safe harbor” provisions. And once the employer has actual knowledge of the employee’s illegal status, it must either (1) fire the employee or (2) risk criminal and civil liability for violating the statute.
But on 10/10/2007 a federal judge in California issued this preliminary injunction against enforcing the proposed amendment. You can read news coverage of the action from the Washington Post here and an editorial from the New York Times applauding the judge’s decision here.
