SSN Policy Manual

Employment Issues

The regulation, 26 CFR §31.6011(b), specifically, $601l(b)-2 discusses employee account numbers and delineates the process employees and employers should go through to collect the proper number. This section also discusses how an employee who does not have or know the number may obtain a social security number . . . should they wish to do so. The section also discusses the employer's obligation to assist an employee in applying for a social security number. But the section does not require an employee who has not been issued a social security number, because they do not want a social security number1,to obtain one. This section is sometimes referred to when a legal department is trying to say that employees are required by law to have a social security number. Specifically, they will quote 26 CFR $31.601 1 (b)-2(b)(iv), which reads: 26 CFR $31.601 1 (b)-2(b)(iv) (b) Duties of employee with respect to his account number .. . (iv) Employee who is unable to furnish number or receipt. If an employee is unable to comply with the requirement of paragraph (b)(l)(i), (ii), or (i i i) of this section, the employee shall furnish to the employer a statement in writing, signed by the employee, setting forth the date of the statement,the employee's full name, present address, date and place of birth, father's full name, mother's full name before marriage,and the employee's sex, including a statement as to whether the employee has previously filed an application on Form SS-5 and, if so, the date and place of such filing. The information required by this subdivision shall be furnished on Form SS-5, if a copy of Form SS-5 is available. The furnishing of such a Form SS-5 or other statement by the employee to the employer does not relieve the employee of his obligation to make an application on Form SS-5 and file it with a district office of the Social Security Administration as required by paragraph (a)of this section. The foregoing provisions of this subdivision are not applicable to an employee engaged exclusively in the performance of domestic service in a private home of his employer not on a farm operated for profit, or in the performanceof agricultural labor, if the services are performed for an employer other than an employer required to file returns of the taxes imposed by the Federal Insurance ContributionsAct with the office of the United States Internal Revenue Service in Puerto Rico. However, such employee shall advise the employer of his full name and present address. The wording of this portion of code can be a bit confusing. Certainly phrases such as, ". . . shall furnish to the employer .. ." do appear to mandate the requirement. However, this portion of code belongs to a section regarding the "duties of an employee with respect to his account number"; that is, it is written for an employee who either doesn't remember his account number, or is not sure if an account number has been assigned and wants to obtain a number if one has not been assigned. This section of code does not require an employee, who does not wish to obtain a social security number, to obtain one. Additionally, note the use of the permissive term shall (see page x). However, employers are not relieved of the requirement of asking an employee for a social security number, simply because an employee does not have or wish to obtain a social security number. Specifically, 26 CFR $601l(b)-2(c) requires an employer to do one or more of the following six things when attempting to obtain an employee's social security number.

1. Note the employer is expected to assist an employee who wishes to obtain a social security number. However, some employees may not want a social security number - this regulation does not require an employer to assist those employees who do not wish to obtain a social security number.