Immigration Reform May Affect All Employers

by Spilman Thomas & Battle, PLLC
Contact

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.
 

For more information, please contact:

- See more at: http://www.spilmanlaw.com/Resources/Attorney-Authored-Articles/Labor---Employment/Immigration-Reform-May-Affect-All-Employers#sthash.ZfQKXhiL.dpuf

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.
 

For more information, please contact:

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.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC
Contact
more
less

Spilman Thomas & Battle, PLLC 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.