OHIO ATTORNEY GENERAL RECOMMENDS EMPLOYERS DISCONTINUE USAGE OF SSN'S AS IDENTIFICATION!

Background: 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 no one 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 [a/k/a, 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 Form W-4 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. Title 26 U.S.C.] "trade or business".

Have a happy spring with happy employees!

on site copy of http://www.ag.state.oh.us/legal/pubs/empLaw/spring04web300.pdf

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REMEMBER: No law compels a work eligible man or woman to submit a Form W-4 or W-9 (or their equivalent) or 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.