We did all of the correct hiring processes, including a background check and a credit report, on one of our employees and later found out that he is an illegal immigrant. He has lived in the U.S. illegally for 15 years and has a Social Security card but no driver’s license or passport. But because of the Social Security card, he has a complete credit history, address, and education history. The employee also checked that he was a U.S. citizen on his I-9 form and has since informed us that he didn’t want to lie but had no choice. What are our options, and what is the risk to the company if we decide we want to keep him on board?
— Anonymous
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The 1986 federal Immigration Reform andControl Act (IRCA) prohibits the employment of unauthorized workers in the United States. IRCA requires all American employers to verify each new hire’s identity and work authorization by completing the Form I-9 within three business days of the individual’s start date.
At the same time, IRCA prohibits employers with four or more employees from discriminating against any person (other than an unauthorized alien) because of the individual’s national origin or, in the case of an authorized worker, his or her citizenship status.
Accordingly, employers must walk a fine line in properly completing the I-9 form and not discriminating on account of national origin or citizenship. This may be accomplished by not demanding more or different documents than an employee chooses to present for I-9 compliance as long as the documents presented are listed as acceptable on the I-9 form.
For instance, if an employee tenders documents that satisfy the I-9’s requirements, the employer should not insist the employee also furnish proof of U.S. citizenship. Further, the employer must accept the documents the employee provided as long as they reasonably appear to be genuine. This means that if the employee furnishes a driver’s license that appears to be reasonably genuine, the employer should not ask the employee whether the document is a forgery.
Indeed, once an employee has satisfied the I-9 requirements, the employer should not keep questioning the employee about whether he or she is legal or not. Such further questioning or statements about an employee’s legal status may give rise to a discrimination and/or harassment claim alleging violation of IRCA, Title VII (the federal antibias law), and/or state law.
“Anonymous” does not explain how he or she became aware that this particular employee is an illegal immigrant. Assuming, however, that Anonymous innocently learned about the employee’s illegal status from another employee or a third party, or otherwise obtained information that made the manager reasonably and in good faith question the employee’s legal status, the employer should reverify the employee’s work authorization by allowing him or her another opportunity to present acceptable documentation and complete a new Form I-9. If the employee can’t satisfy the I-9 requirements, the employer must terminate the employee. Employers who knowingly continue to employ an unauthorized worker may be subject to serious penalties.
If the employee satisfies the Form I-9 requirements (for instance, the employee may have obtained work authorization since the time of hire), the employer may take disciplinary action against the employee for providing false information when he or she was hired. This is a judgment call for the employer. Falsifying company records may be a legitimate reason for termination or other lesser discipline.
Allen M. Kato is an associate at the San Francisco office of law firm Fenwick & West.