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How Employers Need to Address New Individuals or Identities in the Workplace
February 24, 2015
On November 20, 2014, President Obama announced an Immigration Accountability Executive Action that, among other things, provides new or expanded immigration benefits to certain unauthorized immigrants. The expanded Deferred Action for Childhood Arrivals (“DACA”) program and the new Deferred Action for Parental Accountability (“DAPA”) program are both prosecutorial discretion programs where eligible individuals will have temporary relief from deportation. In addition, these individuals will be granted work authorization during the duration of the program.  Estimates of the number of unauthorized immigrants who could benefit from expanded DACA and DAPA range from four to five million people.
While a federal court judge issued an order temporarily blocking the implementation of the executive action on February 16, 2015, the Secretary of the Department of Homeland Security has stated that the Justice Department will appeal the order. Further, legal scholars have opined that the executive action is well within the rights of the administration to issue.
Employers need to be cognizant of several issues that may arise when four to five million individuals gain employment authorization in the coming months. There are two scenarios related to current employees that employers should be prepared to handle. 
One scenario is that a current employee informs an employer that he now has work authorization and shows a new employment authorization document, which is different than, or contradicts, information that he previously gave the employer during the I-9 process. 
The second scenario is similar, except the employee presents a new employment authorization document with a new name on it – because the employee gave a false name and false documents when he was originally hired.
The issues an employer should keep in mind when addressing these situations include the following:
  • The civil penalties for knowingly hiring or continuing to employ an undocumented worker range from $375 to $16,000 for each worker, depending on the situation and whether it is a first, second, or third offense. The civil penalties for failing to comply with the I-9 requirements range from $110 to $1,100 for each form that an employer fails to complete or is completed incorrectly. Employers may have a defense if they did not know and/or should not have known that the individual was undocumented before he brought in the new employment authorization document. Since the employee is now currently documented, the employee is now documented for employment purposes. Accordingly, the employer does not benefit from an immigration perspective by terminating the employee’s employment. Any fines will be assessed based on the employer’s past conduct, although the employer will certainly be on notice if the employee ever loses the employment authorization and the employer continues the employment relationship.
  • What are the employer’s written policies for falsifying information during the employment application process or during employment and how has the employer enforced those policies in the past? Frequently, the unauthorized immigrant is one of the employer’s best employees, and the employer wants to continue the employment relationship even though the employee presented a false document – or even a false name – when initially hired. The problem here is that if the employer allows the employee to continue working, the employer might set a precedent for how it treats other instances of falsification of information, including such things as resume fraud. The employer should closely look at hiring documents and past actions in these situations before acting, although some compassion may be warranted as well.
With respect to the I-9 employment eligibility verification process, if the employer decides to continue employing the individual, the employer should have the employee complete a new I-9 form. The old I-9 form should be retained, however. Retaining the old I-9 form is important to show that the employer initially completed the I-9 employment eligibility verification process during the first three days of employment.
Employers may also be required to correct the employment taxes or returns filed with the Internal Revenue Service if an employee presents a new social security number. Employers should consult with their accountants and legal counsel before making any such corrections.
Before taking any action, employers must remember the Immigration Reform and Control Act contains provisions prohibiting discrimination against individuals on the basis of national origin, citizenship, or immigration status. Remember that employers may not demand an employee provide a specific document during the I-9 process, and they may not refuse to accept documentation if it reasonably appears to be genuine and relates to the employee. Employees who believe they have been discriminated against may file a discrimination charge with either the Office of Special Counsel for Immigration-Related Unfair Employment Practices or the Equal Employment Opportunity Commission. 
Employers should tread carefully when making the decision to terminate the employment of someone who presents a new employment authorization document and who was previously an undocumented worker, or conversely, when making the decision to continue the employment of that individual.

If you have any questions about this issue, or any Labor & Employment issue, please contact our attorneys.

Labor & Employment Law