In a past blog, we discussed practical steps to take when you find that an employee has been using a false ID and wants to “fix it”. That blog assumed that the company wants to continue the employment and was focused on the practical implications for tax purposes.
But we need to also take a step back to the determination of whether to maintain or terminate employment. This raises a company policy question and could have implications for future discrimination claims by the Office of Special Counsel.
The corporate policy question: If an employee comes forward with information that she has been using a false ID, some companies maintain an “honesty” policy that would require terminating employment. Others allow an employee to explain the situation and maintain employment if she now has a valid ID and authority to work. Often a worker who was using a false ID is a good worker that has been trained and is integral to the company “family”. The decision to terminate can be gut-wrenching.
The way in which an employee with a false ID is treated could have implications beyond this employee, however. If the company has an honesty policy that is not being enforced in this instance, how will enforcement in another situation be justified? If the company does not have an honesty policy, can you terminate another employee who is found to have lied about something else if you do not terminate the employer with the false ID?
The Office of Special Counsel (the agency that enforces the anti-discrimination provisions of the I-9 law) and other federal agencies may consider selective enforcement to be an indicia of unlawful discrimination if an employee that is terminated complains.
How your company answers these questions will depend on a variety of factors and should be addressed with both employment and immigration counsel.