My employee refuses to provide me with her Social Security Number. Can I withhold her check until she provides me with the correct info?

Posted  06-10-2014

Ann Kiernan replies:

First, a disclaimer: I am not a tax lawyer! That being said, it is clear that the Internal Revenue Service requires employers to provide their employees’ social security numbers to the IRS, and can penalize them if they don’t. The IRS can forgive the fine if you can show “reasonable cause” by establishing that (1) the failure arose from events beyond your control and (2) you acted in a responsible manner. IRS regulations say that the refusal of an employee to provide his or her SSN to the employer is an event beyond the employer’s control, and that, to act “in a responsible manner”, you have to ask for the SSN, and tell the employee that the IRS can fine her if she persists in her refusal.

Even though she hasn’t complied with the law, you should pay her. IRS regulations provide that you must make the withholding deductions for a single person without dependents when an employee does not give an SSN.

You haven’t said why the employee refuses to give you her number, but even if she claims an exemption based on some sort of religious belief, the courts have been unanimous that that employers are not required to accommodate an employee’s religious objections to using social security numbers, and can fire employees who refuse to provide SSNs. See, e.g., Seaworth v. Pearson, 203 F.3d 1056 (8th Cir.), cert denied, 531 U.S. 895 (2000).

Please be sure to consult your accountant or tax attorney for precise advice about your situation. Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.