On January 8, 2015, the U.S. Department of Justice (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) issued a technical assistance letter (TAL) in response to an employer’s request for guidance. The TAL primarily serves to provide guidance on how to address the instance where an employee admitted after the fact that the documents presented during the Form I-9 process were not genuine and whether the employer would face any liability for discrimination if it chose to terminate the employee.
Not surprisingly, OSC refused to issue an advisory opinion. But it did note that it could provide general guidelines regarding compliance with the anti-discrimination provision of the Immigration & Nationality Act (INA), 8 U.S.C. § 1324b. Under the anti-discrimination provision of the INA, there are four types of employment-related discrimination: (i) citizenship or immigration status; (ii) national origin discrimination; (iii) unfair documentary practices during the employment eligibility verification process; and (iv) retaliation for filing a charge, assisting in an investigation, or asserting rights under 8 U.S.C. §1324b.
By way of background, under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to verify that an employee is authorized to work in the United States by obtaining and maintaining a completed Form I-9, Employment Eligibility Verification for each employee. The Form I-9 contains a list of acceptable documents for establishing an employee’s identity and authorization to work. Those documents include a U.S. Passport, Permanent Resident Card, driver’s license, social security card, and birth certificate, among others. The employee is required to present the employer unexpired documentation establishing his identify and authorization to work. In turn, the employer must inspect the documents to ensure that the documents reasonably appear to be genuine and to relate to the person presenting the documents. Thereafter, the employer is required to record the information about the documents in Section 2 of the Form I-9.
As OSC noted in its TAL, in instances where an employer has properly completed these steps, and subsequently an employee comes forward with authentic work and identify documents once he/she has legalized his/her immigration status, the USCIS Handbook for Employers advises the employer to complete a new Form I-9 with the original hire date and new documentation, and attach it to the old Form I-9 with an explanation. The employer is not required to terminate the employee.
OSC further stated that it could not identify any violation of 8 U.S.C. § 1324b when an employer consistently accepted documentation that appeared to be facially valid, despite the fact that the employee later admitted that the documents were fraudulent. This was even the case in instances where the employer allowed the employee to continue working when the employee presented genuine documentation and admitted the previous documentation presented was fraudulent. Yet, if the employer rejected valid work-authorization or terminated the employee, such actions could result in a violation of the anti-discrimination provision of the INA on the grounds of citizenship and/or national origin discrimination and document abuse (employers cannot reject valid Form I-9 documentation). OSC opined that the employer would then be tasked with providing a legitimate non-discriminatory reason for termination.
So, what’s an employer to do? Employers are certainly in a pickle, because, OSC’s TAL implies that if an employer has not consistently-followed its policy of terminating individuals for providing false information during the hiring process, it couldn’t use that policy to justify a termination in this particular scenario. To do so, most likely would not overcome the presumption of discrimination or be deemed to be a legitimate non-discriminatory reason. Moreover, even if the employer did consistently terminate individuals who were dishonest during the hiring process, OSC implied that this was not necessarily a slam dunk argument either. It is important to note that OSC did not commit itself by concluding that such a termination under the circumstances would not constitute discrimination or be deemed to be a valid legitimate non-discriminatory reason for termination. It simply stated it would depend on the facts and circumstances.
Consequently, before an employer is in a similar scenario as the one described herein, an employer should consider reviewing its handbook and whether it has a consistently-followed any policy of terminating individuals for providing false information during the hiring process. And, even if it does, the employer should determine beforehand whether the employer wants to apply it in instances where someone was dishonest or presented fraudulent documentation during the Form I-9 process. Remember the USCIS Handbook for Employers provides that “where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment.”