Member Article

On January 29, 2013, President Obama announced his plan for comprehensive immigration reform. While the proposal to require mandatory, phased-in electronic employment verification has obvious implications for employers, the proposal to provide a pathway to earned citizenship may have an unforeseen effect on employers, as well. While surprising to some, many individuals in all walks of life do not have work authorization but are still members of the workforce.

Consider the following scenario: a long-term employee approaches you or a supervisor in your company and advises you that she provided you with a false social security card at the time she was hired, but that she now has a valid social security card and that she would like to update her records. How should an employer handle such a situation?

Several different issues are implicated in this and similar situations. At the outset, the employer will need to determine whether the employee was authorized to work in the past and whether the employee has current (and future) work authorization. Section 274A of the Immigration and Nationality Act provides that it is unlawful for an entity to hire an individual knowing the individual is unauthorized to work. The statute also provides that it is unlawful for an entity to continue to employ an individual knowing she is or has become unauthorized for employment.

In the scenario we presented, the employer may have a defense to any charges that it knowingly employed an alien unauthorized to work in the United States in the past because the employer completed the I-9 process and determined that the employee’s offered documents were valid at the time. If the employee does not have current work authorization at the present time and going forward, however, the employer will be liable for violating the Immigration and Nationality Act if it continues the employee’s employment.

If the employee is currently authorized to work, the employer must consider the separate issue of the employee’s misrepresentation during the hiring process. The employer must review the particular facts of the situation, including whether the employee provided false information on the employment application, the I-9 form, or other company documents. The employer will need to review its policies and procedures, as well as its past practice in similar situations. Is there a written policy that provides for disciplinary action for falsification of employer documents? Does the employment application state that the individual represents that all of the information provided is accurate? Has the employer previously allowed an employee to continue their employment after discovering a misrepresentation in similar circumstances (for example, on a resume)? The employer should focus on its specific policies, whether the employee had notice of its policies, and treating employees with consistency for similar misconduct.

The most difficult issue for employers to face is when a long-term, well-loved, star employee advises her employer that she is or was undocumented. Even if it is possible to continue this employee’s employment in the future without violating the Immigration and Nationality Act, the employer must carefully consider whether maintaining the employment relationship will establish a precedent for other similar situations.

When confronted with this or a similar situation, the employer should gather all the facts and then contact legal counsel for assistance in navigating all the issues that may arise.