http://www.ag.state.oh.us/legal/pubs/empLaw/spring04web300.pdf
Ohio AG tells employers to stop using SSN's-
March 2008 Human
Resources Newsletter---Copyright by CT Forms
"The Premier Service for Forms
of Counsel"
All Rights Reserved
OHIO ATTORNEY GENERAL RECOMMENDS
EMPLOYERS DISCONTINUE USAGE OF SSN'S AS IDENTIFICATION !!
HUMAN RESOURCES
TIP #23: Discontinue usage of SSN's as employee
identification use
alternative numbers.
HUMAN RESOURCES TIP #24: Redact or black-out SSN's
on all documents
in files.
HUMAN RESOURCES TIP #25: Respect your
employee's wishes when they refuse to provide an SSN on ANY document even those
of government. Take no adverse action against an employee for refusing to
provide an SSN.
HUMAN RESOURCES TIP #26: Do not assume an SSN is a TIN
[taxpayer
identification number] unless specifically told-so by the
employee
Dear Human Resources Manager or Subscriber:
For this
March newsletter we re-visit identity theft, Social Security Numbers [SSN's] and
a methodology for keeping your company safe regarding these "identity theft"
numbers.
For years we have been stating that the continued usage and
demand of SSN"s from employees will cause some potential na ve employer a huge
litigation problem. It's a ticking time bomb. Unfortunately employers are slow
to catch on but you won't be able to say that the Ohio Attorney General didn't
warn you in 2004. In the attached piece written by the Ohio Attorney General and
according to the Federal Trade Commission -- the number one source for identity
information is employer records. Often these employer records contain the name,
SSN and address of the employee thus making them convenient "one stop shopping"
for identity thieves. With a litigious society bent on civil lawsuits, it isn't
a stretch of the imagination to imagine a lawsuit over an employer not
adequately taking steps to prevent this information from disclosure. Since 2004
the problem has only gotten far worse. Record numbers of law enforcement
agencies are being inundated with ID theft complaints primarily traceable to
SSN's many from employer-related records [or third-party releases such as
background check private companies.] Our bottom line recommendation is this:
"Stop using these numbers. If the number ISN'T on the form, it can't be stolen.
If the number isn't in the file, it CAN'T be stolen!"
THE SECRET YOU NEED
TO KNOW: We checked with our counsel who
provided us this opinion on SSN's:
"Rare is the case an employer actually needs a SSN. Indeed the Social Security
Administration admits the numbers are actually their property and further that
noone needs an SSN to work in the United States. This latter fact isn't widely
known--but NOT knowing and demanding an SSN where no
authority to demand
exists--could get the employee demanding same, and his employer, involved in a
civil action. Our recommendation is frankly to not push the SSN issue with
employees. If an employee provides an SSN even on taxation forms it should only
be done voluntarily and with NO adverse actions taken in case he
refuses.
Next time you visit Taco Bell, examine closely their application
for employment regarding SSN's and see the result of a law suit over employers
demanding SSN's".
On a related note we often get asked
this:
QUESTION:
"Well if what you say is true, then what about SSN's
on government forms?"
ANSWER:
Form I-9: To our knowledge the
only spot that asks for an actual SSN [and not an implied TIN] is on form I-9.
However nothing in the law actually states the employee must provide the number.
Because primarily government forms are intended for government employees, the
majority of "spots for information" are considered voluntary when used by the
general population NOT engaged in federal employment. A twist: Indeed, the
restrictions of public law regarding I-9 disclosures can actually RESTRICT the
employer from using that number on ANY other form. In other words, do not assume
you have the employee's permission to use that number on any other form or in
any other way simply be virtue of its disclosure on Form I-9. You could possibly
be in violation of the laws behind Form I-9!
Form W-4, Form W-2,
and Form W-3: Let's examine W-4 first. The title of the form identifies it as an
"allowance" certificate. Its only purpose is as a permission-slip to ALLOW the
non-governmental employer to withhold [aka take] some money from the employee's
compensation on behalf of government. If you gather that ALLOWANCE implies a
voluntary-act, you are correct! If the form is voluntary
for those outside
governmental employment, then what of its content including the spot for a
number? We repeat: The submission of a W-4 form or any other alternative AND ITS
CONTENTS is considered a voluntary act! Common sense will dictate that one
cannot demand on behalf of government: (1) a form signed under oath, with
(2)
a severe penalty of perjury jurat for non truth when (3) someone is simply
exchanging labor for compensation and when (4) the person demanding is not an
authorized withholding agent of government [Hint: Were you given a badge or
written delegation of authority?] Next you must understand that a SSN is not the
same as a
TIN [taxpayer identification number]. There is no impossibility at
law: If these two groups of 9 digits were the same, there would be no need for
two different names. [BEWARE: The IRS has consistently confused these two
definitions especially in their publications and forms. Unfortunately-- as
employers on our distribution list have
identified--the IRS does not come to
the aid of employers relying on IRS publications; the IRS is under the Executive
Branch of government and that branch does NOT make law.] Thus, non governmental
employers make a BIG mistake if they automatically convert or assume one number
for the other without the expressed permission of the employee. Tis' better to
err on safety and to simply refuse to "do the work of government": In a
government-declared "system of voluntary compliance
by the making of a
return", the nongovernmental employer is without authority to create a
"taxpayer" that responsibility is left to another. Our recommendation is that
you as employer NOT attempt to "create" "taxpayers" from mere nongovernmental
employees.
REMEMBER: NON-GOVERNMENTAL EMPLOYERS CAN ONLY REQUEST
AND NOT DEMAND! Remember that the SSN is not "owned" by the employee and further
your "need" is only to satisfy his benefit if he chooses to participate in
government social security insurance and the government withholding program.
Thus if an employee refuses to include an SSN on any government form, that right
is his own. These forms are creations of government and their existence and
content cannot be made mandatory outside those in government employment.
Further, you need not inquire of his reasons. His reasons might range from
religious "mark" aspects to simply never applying for an SSN or to not wanting
to be forced to make an oath under penalty. And you as an employer have NOTHING
to fear from not including an SSN on any government form you submit to
government. The fine for EACH employee is $15 and this can be waived by simply
including this statement on the "transmittal document" you send with Form W-2
and W-3: "I requested an SSN [or Form W4]. This non-federal employee did not
provide the number [or Form W4]. To my knowledge he is not a federal employee or
government "individual" nor does he engage in federal [i.e. 26USC] "trade or
business".
Have a happy spring with happy employees!
http://www.ag.state.oh.us/legal/pubs/empLaw/spring04web300.pdfThis
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contained is either our own or that of our counsel.
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