Ohio AG tells employers to stop using SSN's

From: Billy-Joe: Mauldin
 

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.pdf
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No law compels a work eligible man or woman to submit a form W-4 or W-9(or their equivalent) nor disclose an SSN as a condition of being hired or keeping one's job.  With the exception of an order from a court of competent jurisdiction issued by a duly qualified judge, no amounts can be lawfully taken from one's pay (for taxes, fees or other charges) without the worker's explicit, knowing, voluntary, written consent.