For the past several years, thousands of businesses have been hit with phishing scams during tax season. Through these social engineering scams, hackers obtain employee Forms W-2 for filing fraudulent tax returns seeking large refunds. These phishing emails are typically sent as clients begin the process of issuing W-2s to employees.  Often employers do not know the scam has occurred until it is too late. The consequences from a successful W-2 phishing scam can extend well beyond leaked data, and may include potential employee class action litigation.

With the tax season quickly approaching, it’s worth re-visiting W-2 phishing email scams and describing steps an employer can take to help avoid them. The cyber-scam consists of an e-mail sent to an HR or Accounting department employee, presumably from an executive or “higher-up” within the organization. Both the TO and FROM e-mail addresses are legitimate internal addresses, as are the “sender” and recipient names. The fake e-mail asks the employee to forward the company’s W-2 forms, or related tax data, to the “sender.” This request aligns with the job responsibilities of both the employee and the supposed internal “sender.” Despite its appearance, the e-mail is a fake. The scammer is “spoofing” the company executive’s identity. In other words, the cyber-criminal is assuming the executive’s identity and e-mail address for the purpose of sending what appears to be a legitimate request for sensitive company information. The unsuspecting employee relies on the accuracy of the sender e-mail address, coupled with the sender’s job title and role, and forwards the confidential W-2 information. The information goes to a hidden e-mail address controlled by the cyber-criminal.

If successful, the cyber-criminal obtains a trove of sensitive employee data that can include names, addresses, salary information, social security numbers, and well as employer information needed for tax filings. The information is used to file fake individual tax returns (Form 1040) which generate fraudulent tax refunds, or it is sold on the dark web to identity thieves.

This cyber-scam is form of ‘spear phishing’ known as business email compromise (BEC) attacks, or CEO spoofing. Spear phishing attacks target a specific victim by using personal or organizational information to earn the victim’s trust. The cyber-criminal uses information such as personal and work e-mail addresses, job titles and responsibilities, names of friends and colleagues, personal interests, etc. to lure the victim into providing sensitive or confidential information.  Quite often, the scammer culls this information from social media, LinkedIn, and corporate websites. The method is both convincing and highly successful.

While an organization can use firewalls, web filters, malware scans or other security software to hinder spear phishing, experts agree the best defense is employee awareness. This includes ongoing security awareness training for all levels of employees, simulated phishing exercises, internal procedures for verifying transfers of sensitive information, and reduced posting of personal information on-line.

In the event your business falls victim to a W-2 phishing scam, it will need to respond quickly. This may require (i) investigating the nature and scope of the attack, (ii) ensuring the attackers are no longer in the business’s systems, (iii) determining whether the business must notify  individuals and state agencies of the data loss under applicable state law, and extend ID theft and credit monitoring services, (iv) notifying the IRS of a W-2 data loss at dataloss@irs.gov, (v) reporting the phishing email to the IRS at phishing@irs.gov and the Internet Crime Complaint Center of the FBI, as well as state taxing authorities, and (vi) helping employees with any questions about rectifying  their tax returns.

A W-2 e-mail phishing scam can have a devastating impact on a business and its employees. This year presents increased challenges for employers trying to guard against these scams. Due primarily to vulnerabilities created by COVID-19, social engineering attacks designed to compromise employee accounts or credentials have proliferated. The FBI cautions that cyber criminals are trying to obtain employees’ credentials regardless of their position within the company. With tax season upon us, expect to see more creative attempts to bait your personnel.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.