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As you may know, all employers are required to complete Form I-9 for every new employee at the time of hire. Doing so allows employers to verify that new hires are authorized to work in the United States, as required by the Immigration and Nationality Act (INA).
When completing Form I-9, employers must be cognizant of actions that may run afoul of INA’s anti-discrimination provision. See 8 U.S.C. § 1324b. While the rules for complying with the I-9 process may seem straightforward, a recent guidance issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) highlights some murky territory that warrants attention. See January 8, 2015 TAL.
The OSC letter addresses what to do when an employee submits new work authorization documents to his employer for I-9 purposes and readily admits that the previously submitted documents were fraudulent—specifically, whether “this situation opens [the employer] up to any discrimination issues in any way if [it] choose[s] to keep or terminate the employee.”
In short, the OSC states that an employer will likely not be held liable under § 1324b for allowing an employee to continue his employment after admitting to having submitted fraudulent documents in the past, so long as the employer completed the initial I-9 verification steps in good faith. In other words, an employer is not required to terminate a presently work-authorized employee who admits to having submitted fraudulent I-9 documents in the past.
If, however, the employer terminates the employee for having submitting fraudulent work documentation in the past, the employer may face liability. While the employee lacked work authorization during the initial I-9 process, the employee’s current work authorization entitles him or her to all the protections provided by INA, including the right to be free from differential treatment on account of one’s citizenship status or national origin in the hiring, termination, and I-9 verification process.
Thus, in determining whether the termination of a presently authorized employee for having previously submitted false work authorization constitutes discrimination, the OSC says it will look to whether the employee was treated differently from other employees.
In this regard, the OSC focuses particularly on the presence and implementation of so-called “dishonesty policies.” If an employer has a consistently followed policy of terminating any individual who submits false information—regardless of subject matter—during the hiring process, the OSC may say the termination was legitimate and nondiscriminatory. Where such a policy is lacking, however, the OSC warns that an employee could sue the employer for treating his or her dishonesty differently than other forms of dishonesty unrelated to citizenship status. In this case, the employer would likely be found to have violated § 1324b.
The above analysis is consistent with previously issued guidance from the OSC. See November 1, 2012 TAL (“If an employer rejects a presently work-authorized individual from employment based on the individual’s prior undocumented status . . . OSC’s investigation . . . would focus on whether an employer’s ‘dishonesty policy’ is consistently applied to employees who make false representations on their application for employment or other forms without regard to citizenship status or perceived national origin.”); June 10, 2010 TAL (“Employers risk violating the anti-discrimination provision of the INA when terminating an employee [who was not previously authorized to work but is now authorized to work] unless they can demonstrate that they have a previously established honesty policy that is consistently applied to employees who make false representations on their application or other forms without regard to citizenship status or national origin.”).
To avoid liability under Section 1324b, employers should make sure to enforce any dishonesty policy consistently, without regard to the subject matter about which the employee is being dishonest. Employers could also preempt the above scenario by enrolling in E-Verify, which allows employers to electronically confirm the accuracy of any I-9 information provided by employees at the time of hire.