Dream Act Might Be a Nightmare for Employers

by Polsinelli
Contact

On August 15, 2012, the Immigration Service began accepting applications for deferred action from certain individuals under 31 years of age who arrived in the United States more than five years ago as children under the age of sixteen. Deferred action is a discretionary decision by the Department of Homeland Security not to pursue immigration enforcement (e.g. deportation) for a specific period of time. The deferred action program is commonly referred to as a “Dream Act;” however, what is one individual’s dream may turn into a nightmare for an employer.

As part of applying for deferred action qualifying aliens are also eligible for employment authorization. Generally, work permit applications take two to three months to process so by this fall, potentially hundreds of thousands of individuals will receive lawful permission to work in the United States. Some of these individuals might already be employed by your company.

Employees provide at the time of hire documents to confirm their identity and ability to work in the United States (the I-9 requirements). It is not uncommon for undocumented employees to provide false documents to gain employment and which employers unknowingly accept. What is an employer to do when a current employee seeks to provide a new work permit or other document with different information than on the documents provided to complete the I-9 at the time of hire?

What Should Employers Do?

In this case, the “knee jerk” reaction of many employers is to discharge the employee for lying on an employment application and/or providing false employment documents. And if employers have fired other employees in the past, for falsifying applications, resumes, and similar documentation, employers may be able to do so with limited exposure. The word may is emphasized, however, because no federal agency (neither the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), nor the National Labor Relations Board (“NLRB”)) has commented on the Dream Act or provided any guidance to employers as to what to do when current employees provide the new, lawful work authorizations. This lack of guidance is frustrating because all employees who would have lied on such employment documents will belong to a protected class, and adverse employment actions probably will be scrutinized by the very agencies that have failed to provide a roadmap for compliance.

Notwithstanding, companies should not feel compelled to continue to employ employees who dishonestly gained employment. If an employer believes that it has no choice but to fire an employee, lying or falsifying employment documentation is a facially neutral reason that should be used as justification for all terminations. Employers who have “honesty policy” provisions in employee handbooks or other personnel policies should specifically refer to them in all documentation. Employers who do not have such policies should consider revising their handbooks to include them. Significantly, employers should self-audit their own employee files to ensure that discharge is consistent with past practice. If offenses like this in the past only have led to warnings or suspensions, levying a heftier punishment could lead to an inference of pretext. Finally, employers should not justify any termination decision based on “failure to possess the proper papers.” Similar to the problems with “no match” letters, such decisions disparately impact a certain segment of the population belonging to a different national origin, and federal agencies have not been tolerant of such excuses.

For the Dreamer employees who continue in employment, employers are advised to complete a new I-9 form and attach to the initial I-9 created at the time of hire.

Hopefully, some guidance will be forthcoming by the time that employers feel the impact of the Dream Act. Regardless, an employer facing this type of documentary nightmare should consider the immigration regulations as well as state employment laws in charting a course of action. Employers are advised to seek the assistance of legal counsel who can assist in both of these areas.

For More Information

To learn more about the impact of the Dream Act, please contact the authors of this alert or another member of Polsinelli Shughart's Labor and Employment practice group:

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Polsinelli | Attorney Advertising

Written by:

Polsinelli
Contact
more
less

Polsinelli on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!