Here is some info you may enjoy on SSNs
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Memorandum of Law:
"Requirements of Employers
With Respect to Social Security Numbers"

 

Under Internal Revenue Code (IRC) 6109(a)(3) requires withholding agents to request
social security numbers (SSN's) from payees:
 
Any person required under the authority of this title to make a return, statement, or other document with respect to another person shall request from such other person, and shall include in any such return, statements, or other document, such identifying number as may be prescribed for securing proper identification of such other person.

 

The implementing regulation for IRC 6109(a)(3) is 26 CFR 301.6109-1(c), which states that if a withholding agent requests a payee's SSN but does not receive it, all the withholding agent has to do to comply with the law is sign an affidavit stating that the request was made. In other words, withholding agents are required to request, and not obtain, SSN's from payees:
Every person required under this title to file a return, statement, or other document shall furnish such taxpayer identifying numbers of other persons as required by the forms and the instructions relating thereto. If he does not know the taxpayer identifying number of the other person, he shall request such number of the other person. A request should state that the identifying number is required to be furnished under authority of law. When the person filing the return, statement, or other document does not know the number of the other person, and has complied with the request provision of this paragraph, he shall sign an affidavit on the transmittal document forwarding such returns, statements, or other documents to the Internal Revenue Service, so stating.
Furthermore, IRC 6723 governs failures to report information under IRC 6109. IRC 6724(a) provides for a waiver of any penalties assessed under the code upon a showing of reasonable cause:
No penalty shall be imposed under this part with respect to any failure if it is shown that such failure is due to reasonable cause and not willful neglect.
Thus, if a withholding agent requests an SSN from a payee and signs an affidavit stating that a request was made, it is under no possibility of penalty.
For an employer to terminate the employment of an employee because such an employee does not have or produce an SSN is also a violation of 7(a) of The Privacy Act of 1974 (PA), 88 Stat. 1896, et seq., Public Law 93-579, codified at 5 U.S.C. 552(a) (note):
It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security number.
In requesting SSN's from employees, employers are acting as withholding agents of the Internal Revenue Service (IRS). It has already been settled that private persons, when acting as government agents in the collection of SSN's, are subject to the PA. See Yeager v. Hackensack Water Co., 615 F.Supp. 1087, D.C.N.J., 1985. The facts and law in Yeager are as follows:
Water customers brought action against private water company and several state officials alleging violation of their constitutional and statutorily protected rights by water company's request for their names and social security numbers in connection with water allocation in drought emergency. The District Court, Clarkson S.Fisher, Chief Justice, held that: (1) action of water company were imputed to state for Privacy Act purposes; (2) water company could not elicit social security numbers without complying with disclosure requirements of Privacy Act; and (3) state's authorization of collection of names of individual household members as well as water company's actions pursuant thereto, were unconstitutional.
Order accordingly.
 
Yeager v. Hackensack Water Co., 615 F.Supp. 1087, D.C.N.J., 1985.
 

Pursuant to the state's directives, Hackensack has sought to ascertain its customers' social security numbers as well as the names of individual household members. To secure this information Hackensack prepared and sent a postcard mailer form to each of its residential customers.
 

Yeager v. Hackensack Water Co., 615 F.Supp. 1087, 1089, D.C.N.J., 1985.
 

Although the collection of social security numbers was not specifically authorized, the postcard mailer received by plaintiffs indicated that the failure to provide all requested information could result in civil or criminal sanction. In short, Hackensack was authorized by the state to take whatever action it deemed necessary, including the collection of its customers' social security numbers, to enforce the state's water [P.1090] rationing program. Sufficiently onerous punitive measures were threatened to insure compliance with Hackensack's requests for information.
 

Yeager v. Hackensack Water Co., 615 F.Supp. 1087, 1089, 1090, D.C.N.J., 1985. 

 

Although Hackensack is not a "Federal, State, or local government agency" as defined in the Act, [3. 5 U.S.C. 552(e).] plaintiffs argue that by virtue of the state's executive and administrative orders Hackensack was deputized for the purpose of collecting the requested information. In certain situations, where there is a close nexus between the state and an action by a regulated entity, the action of the latter may be fairly treated as that of the state itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). This situation exists when a statutory scheme or executive directive compels, or at least provides the impetus for, the alleged proscribed activity. Jackson v. Metropolitan Edison Co., 483 F.2d 754, 757 (3d Cir.1973), aff'd, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). See also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); State v. Droutman, 143 N.J.Super. 322, 363 A.2d 1304 (Law Div.1976). While these and other similar cases have found "state action" in the context of alleged constitutional violations by regulated entities, the same principle is applicable here. In order to determine the applicability of the Privacy Act to the actions of Hackensack, the central question is whether its solicitation of social security numbers was sufficiently fostered or encouraged by the state as to be imputed to the state. 

 

Given the information presented, it is clear that the primary motivation for Hackensack's attempt to obtain its customers' social security numbers came from Administrative Order No. 6. Hackensack has argued that the normal collection of its charges would be facilitated if it possessed customer's social security numbers. While this may be true, this is not the context within which the information was solicited. Hackensack's customers were informed that the requested information was required by the state's rationing program. On the basis of the state's significant involvement in Hackensack's actions, those actions will be imputed to the state. As an action of the state, the disclosure of social security numbers cannot be compelled without compliance with section 7(b) of the Privacy Act.
 
Yeager v. Hackensack Water Co., 615 F.Supp. 1087, 1091, D.C.N.J., 1985.
 
Thus, for an employer to deny employment because an employee does not produce a SSN is a violation of the PA. Furthermore, to so much as request an SSN without providing a Privacy Act notice pursuant to 7(b) is a violation of the act.
 
A private person, when acting as a government agent, is subject to the PA for the simple reason that an agent of the government cannot do what the government prohibits itself from doing.
 
The only other provision relating to the duty of withholding agents with respect to SSN's is 26 CFR 31.6011(b)-2. This regulation, however, has no penalty provision. Thus, compliance with it is voluntary. Furthermore, its statutory basis is IRC 6011(b), which does not specifically require divulge of an SSN. Thus, under the PA, an SSN cannot be required under this regulation because it is not required by its statutory authority.
 
All of the statutory arguments relating to the IRC have been addressed in the case of EEOC v. Information Systems Consulting, CA3-92-0169-T. The Equal Employment Opportunities Commission (EEOC) sued an employer because it had fired one of its employees solely for refusing to divulge an SSN. The employee had informed the employer that he was religiously opposed to using an SSN and that federal law did not require them to obtain it, but to no avail. 

 

The company, in Defendant's Brief in Support of Its Motion to Dismiss, argued that 26 CFR 31.6011(b)-2 requires employees to divulge their SSN's to their employers (Pp. 11-13), and that there was a compelling state interest in not accomodating the employee's religious belief against using an SSN on tax documents (P. 21, 22). The 26 CFR 31.6011(b)-2 argument was repeated in Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss (P. 4) and argued that withholding agents, under IRC 6109(a)(3) are required to obtain, and not merely request, SSN's from payees (Pp. 5-6). 

 

The EEOC, in their Plaintitt's Responose to Defendant's Motion to Dismiss, argued that the IRC regulations applicable to the penalty provision applicable to not including an SSN on a tax document (IRC 6724) provides a reasonable cause exemption, and consequently a withholding agent who requests, but does not receive, an SSN from a payee, cannot be subject to penalty (P. 4). They further argued that it was the company, and not the IRS, who terminated the employee (P. 7), and that 26 U.S.C. 6109(a)(3), 26 CFR 301.6109-1(c), IRC  6723, and IRC 6724, do not require withholding agents to obtain an SSN from each payee, but merely request one (Pp. 8-11). 

 

The court denied all of the company's arguments and accepted all of the EEOC'S arguments. In its Order Denying Defendant's Motion to Dismiss and Declaring Moot Defendant's Motion for Protective Order, the court states that there is no law requiring an employer to terminate an employee who does not divulge an SSN (P. 5), that it was the company, and not the IRS, who terminated the employee in question (Pp. 5-6). In the consent decree, it is stated that the company "shall be permanently enjoined from terminating an employee or refusing to hire an individual for failure to provide a social security number because of religious beliefs. If an employee or applicant for employment advises the defendant that he does not have a social security number because of his religious beliefs, the defendant shall request, pursuant to Section 6724 of the Internal Revenue Code, 26 U.S.C.  6724, a waiver of any penalties that may be imposed for failing to include an employee social security number on forms and documents [P.5] submitted to the IRS." (Pp. 4-5).

 

This case establishes that both the EEOC and the federal district court for Texas have concluded that withholding agents are only required to request, and not obtain, SSN's from payees, and that withholding agents who refuse to accommodate religious objectors are in violation of the anti-discrimination laws.
 
But this is not the only case where a court ordered the accommodation of a person who is a religious objector to the use of the SSN. 

 

The case of Stevens v. Berger, 428 F.Supp. 896, 906, United States District Court, E.D. New York, 1977. found that in a case of recipients of state and federal welfare who refused to acquire SSN's for their dependent children due to their religious objections, the following:
There is no case law determining whether the state and federal governments can meet the compelling state interest test so far as the use of social security numbers is concerned. Analogous cases indicate that they cannot. In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), for example, the Supreme Court held that religious needs outweigh the state's ordinary constitutional power to regulate in the area of unemployment benefits. Plaintiff was a Seventh-Day Adventist whose religion prohibited Saturday work. She had lost her job because she would not work on that day. The state found herr unavailable for work "without good cause" and barred her from unemployment compensation. The court found the state's purposes - prevention of fraud against the benefit fund, and inconvenience to employers - far from compelling, and reversed. In language which could apply with equal force to Mr. and Mrs. Stevens, the Court noted:
The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.
374 U.S. at 404, 83 S.Ct. at 1794.
 
Stevens v. Berger, 428 F.Supp. 896, 906, United States District Court, E.D. New York, 1977. (Emphasis added.) 

 

Congress itself in several instances has recognized a potential conflict between the use of social security numbers and the rights of individuals to freedom of religious belief. Where it has considered the issue, it has resolved it in favor of religious scruples. 

 

Stevens v. Berger, 428 F.Supp. 896, 906, United States District Court, E.D. New York, 1977. 

 

In the case before us, plaintiffs seem to fall well within the realm of permissible religious activity. Their refusal to supply social security numbers does no physical, psychic or other harm to the individuals most affected - their children. No concept of parens patriae warrants protective, intervention by the state. And the deleterious effects of their action on the welfare system is minuscule.
 
Stevens v. Berger, 428 F.Supp. 896, 906, United States District Court, E.D. New York, 1977.
 
In the case of Leahy v. District of Columbia, 833 F.2d 1046, D.C. Cir. (1987), the federal appeals court for the district of Columbia, in a unanimous opinion given by Judge Ruth Bader Ginsburg (now a member of the United States Supreme Court), stated that even though Columbia required SSN's on applications for driver's licenses, religious objectors to the use of SSN's must still be accommodated:
 
Applicant for driver's license who refused to provide his social security number because of religious objections to undue use of the number brought suit alleging that subsequent denial of license based on his failure to supply number constituted a violation of his right to free exercise of religion. The United States District Court for the District of Columbia, 646 F.Supp. 1372, June L. Green, J., denied applicant's motion for summary judgment and dismissed case sua sponte. Applicant appealed. The Court of Appeals, Ruth Bader Ginsburg, Circuit Judge, held that under applicable "least restrictive means/compelling interest" standard, District of Columbia failed to show that requiring applicant to provide his social security number was the least restrictive means of achieving concededly vital public safety objective at stake. Reversed and remanded.
 
Leahy v. District of Columbia, 833 F.2d 1046, D.C. Cir., 1987.
Mr. Leahy's religious beliefs were accommodated even though he had, before acquiring the beliefs, obtained and used an SSN:
Leahy obtained a social security number in the mid-1960's; he asserts that in approximately 1978 or 1979 he came to believe that "use of his social security number for any purpose not related to the administration of his social security account would endanger his chances of being chosen for life after death." Plaintiff's Statement of Material Facts Not in dispute 8 (Plaintiff's Facts.) [3. There is some indication that Leahy now believes use of his social security number even for [P.1048] the administration of his social security account may endanger his immortal soul. See Deposition of John C. Leahy, Jr. at 25-27.] The theological [P.1048] roots of Leahy's asserted belief, see Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 1533-34, 32 L.Ed.2d 15 (1972) (belief must be "religious" in nature to gain shelter under the free exercise clause), lie in the New Testament BOOK OF REVELATION which, in its thirteenth chapter, refers to two beasts. REVELATION prophesies that those who receive the mark of the second beast shall be condemned to eternal damnation. See BOOK OF REVELATION 14:9-11. This mark is characterized as a number required for buying and selling. See id. at 13:17; see also Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y.1977) (extensive discussion of the theological and historical origins of the "mark of the beast"). Leahy avers that "social security numbers have come to share many of the characteristics of the mark of the beast, and that social security numbers may therefore be the mark of the beast." Plaintiff's Facts 7. On that account, Leahy refused to provide his social security number when applying for a driver's license.
 
Leahy v. District of Columbia, 833 F.2d 1046, 1047, 1048, D.C. Cir., 1987.
 

Also worthy of mention is the supreme court case of Bowen v Roy, 475 U.S. 693, 1986:

d. BOWEN v. ROY, 476 U.S. 693 (1986): This case rejected a free exercise challenge to a requirement in the federal AFDC and Food Stamp programs that applicants for welfare benefits provide their social security numbers. The challengers claimed that providing the number for their two-year-old daughter to the Government would violate their religious beliefs, in part because it would "rob the spirit" of the child. Chief Justice BURGER's majority opinion dismissed the claim regarding the Government's use of the number by distinguishing free exercise claims with respect to personal conduct from such claims with respect to the Government's conduct: "Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development. [Free exercise] does not afford an individual a right to dictate the conduct of the Government's internal procedures."
 
With respect to the requirement that the applicant furnish their social security number as a condition of receiving aid, however, the Court was sharply divided. Chief Justice BURGER wrote on this issue only for himself and Justices Powell and Rehnquist, emphasizing the distinction between the conditioning of benefits and direct compulsion. Are "conditions" truly different from "compulsion"? (Recall that the Court had not distinguished Yoder, which involved direct "compulsion," from the conditioned benefits involved in Sherbert.) In Bowen, Chief Justice Burger claimed that only deferential review was required where the Government was not attempting to "affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct." He argued that "government regulation that indirectly and incidentally class for a choice between securing a government benefit and adherence to religious beliefs is wholly different from governmental [P.1570] action [that] criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons. [The] test applied in cases like [Yoder] is not appropriate in this setting. In the enforcement of a facially neutral and uniformly applicable requirement, [the] Government is entitled to wide latitude. [Absent] proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits [is] a reasonable means of promoting legitimate public interest." Chief Justice Burger did acknowledge that a "governmental burden on religious liberty is not insulated from review simply because it is indirect [Thomas; Sherbert], but the nature of the burden is relevant to the standard the Government must meet to justify the burden."
 
Justice WHITE's brief dissent insisted that the case was controlled by Sherbert and Thomas. Justice O'CONNOR, joined by Justices Brennan and Marshall, dissented from Chief Justice Burger's distinction between "conditions" and "compulsion." She insisted that the fact that the "underlying dispute involves an award of benefits rather than an exaction of penalties does not grant the Government license to apply a different version of the Constitution." She claimed that the Chief Justice's "reasonableness" standard for conditioned benefits had "no basis in precedent and relegates a serious First Amendment value to the barest level of minimal scrutiny. [I] would [hold] that the Government must accommodate a legitimate free exercise claim unless pursuing an especially important interest by narrowly tailored means."
 
Justices BLACKMUN and STEVENS filed separate partial concurrences, agreeing that free exercise did not bar the Government's own use of the social security number, but claiming that the record was insufficient to allow consideration of the claims with respect to furnishing the number. However, Justice Blackmun appended to his concurrence a comment that, if forced to reach the issue, he would agree with Justice O'Connor's position regarding the furnishing of the social security number. Given Justice Blackmun's comment, and the view of the four dissenters, there was apparently a majority on the court to uphold a free exercise claim regarding the furnishing of the number.
Constitutional Law, Gerald Gunther, Westbury, New York, The Foundation Press, Inc., twelfth edition, 1991. Pp. 1569, 1570. (Emphasis added.)

 

While it is true in this case that three justices said that the religious objection against the use of SSN's need not be accommodated, they were referring only to applicants for benefits. Although employment is a regulated activity, and some would even go so far as to say it is a government privilege or is become synonymous with federal employment, it is still a civil right, and not a mere non-contractual government benefit. Furthermore, the standard used by Chief Justice Burger and Justices Powell and Rehnquist can, since the passage of the Religious Freedom Restoration Act of 1993, supra, no longer be considered. Any governmental imposition on religion must grant an exemption unless it can be shown that it is the least restrictive means of pursuing a compelling governmental interest. Finally, Chief Justice Burger's lighter standards were explicitly rejected by the court a year later:
 
Both Sherbert and Thomas held that such infringements must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest. The Appeals Commission does not seriously content that its denial of benefits can withstand strict scrutiny; rather it urges that we hold that its justification should be determined under the less rigorous standard articulated in Chief Justice Burger's opinion in Bowen v Roy, 476 US 693, 707-708, 90 L Ed 2d 735, 106 S Ct 2147 (1986): [T]he Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest." Five Justices expressly rejected this argument in Roy. See id., at 715-716, 90 L Ed 2d 735; 106 S Ct 2147 (Blackmun, J., concurring in part); id., at 728, 90 L Ed 2d 735, 106 S Ct 2147 (O'Connor, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 733, 90 L Ed 2d 735, 106 S Ct 2147 (White, J., dissenting). We reject the argument again today. As Justice O'Connor pointed out in Roy, "[s]uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimal scrutiny that the Equal Protection [P.142] Clause already provides." Id., at 727, 90 L ed 2d 735, 106 S Ct 2147. See also Wisconsin v Yoder, 406 US 205, 215, 32 L Ed 2d 15, 92 S Ct 1526 (1972) ("[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion"). [7 In Bowen v Roy, 475 US 693, 90 L Ed 2d 735, 106 S Ct 2147 (1986), the Court considered a free exercise challenge to the statutory requirement that a Social Security number be supplied by any applicant seeking certain welfare benefits. In his opinion Chief Justice Burger expressly reaffirmed Sherbert v Verner, 374 US 398, 10 L Ed 2d 965, 83 S Ct 1790 (1963), and Thomas v Review Board of Indiana Employment Security Div., 450 US 707, 67 L Ed 2d 624, 101 S Ct 1425 (1981), and distinguished those cases from Roy. He observed that the statutes at issue in Sherbert and Thomas provided:
 

 

"[A] person was not eligible for unemployment compensation benefits if, 'without good cause,' he had quit work or refused available work. The 'good cause' standard created a mechanism for individualized exemptions. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in Thomas, to consider a religiously motivated resignation to be 'without good cause' tends to exhibit hostility, not neutrality, towards religion.... In those cases, therefore, it was appropriate to require the State to demonstrate a compelling reason for denying the requested exemption." 476 US, at 708, 90 L Ed 2d 735, 106 S Ct 2147 (citations omitted).
 

 

Thus, even if the Court had accepted the reasoning of the Chief Justice's opinion in Roy - which it did not - we would apply strict scrutiny in this case. Although the purpose of the statute is to provide benefits to those persons who become "unemployed through no fault of their own," Fla Stat 443.021 (1985), Florida nonetheless views a religiously motivated choice which leads to dismissal as "misconduct connected with ... work." 443.101. This scheme - which labels and penalizes behavior dictated by religious belief as intentional misconduct - exhibits greater hostility toward religion than one deeming such resignations to be "without good cause."]
Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 141, 142, 1987. (Emphasis added.)


 

 

In summary: 

1. Withholding agents are required by law only to request, and not obtain, SSN's from payees; 

2. To deny employment because of a person's non-use of an SSN, especially a religious objector, is a violation of state and federal anti-discrimination laws;

 3. A religious belief against using an SSN, whether the applicant has ever had or used one in the past, is a legitimate belief that has been recognized by other courts, including the United States Supreme Court.
 

Table of Authorities

Codes and Statutes:
 

26 CFR 31.6011(b)-2 .4 

26 CFR 301.6109-1(c). 1, 4 

IRC 6011(b).4 

IRC 6109(a)(3) .1, 4

IRC 6723 . 1, 4 

IRC 6724 .4 

IRC 6724(a).1 

The Privacy Act of 1974 (PA), 88 Stat. 1896, et seq., Public Law 93-579, codified at 5 U.S.C.
552(a) (note) 1, 3, 4
 

Case Law:

Bowen v Roy, 475 U.S. 693, 1986 7 

EEOC v. Information Systems Consulting, CA3-92-0169-T.4, 5 

Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 141, 142, 1987.9 

Leahy v. District of Columbia, 833 F.2d 1046, D.C. Cir. (1987). 6, 7 

Stevens v. Berger, 428 F.Supp. 896, 906, United States District Court, E.D. New York, 1977 . 5, 6 

Yeager v. Hackensack Water Co., 615 F.Supp. 1087, D.C.N.J., 1985. 2, 3 

Other Authorities: 

Constitutional Law, Gerald Gunther, Westbury, New York, The Foundation Press, Inc., twelfth
edition, 1991. Pp. 1569, 1570 .8


 

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