Truth and Consequences: The Quandary of Employment References for Dangerous Former Employees

The Immigration and Naturalization Service (INS), like many other federal agencies, has come under close scrutiny in the wake of the recent terrorist activity in the United States. Many people are calling for stronger immigration laws, and in response, the INS is indicating that it intends to be more vigilant about identifying and investigating illegal aliens, individuals who don’t have the legal right to remain in the United States under immigration laws.

Even if an alien does have the legal right to remain in the United States, whether he or she is authorized to work in the country is an entirely separate issue that has more recently raised a cloud of questions for many employers:

How do I make sure I am not hiring or employing an unauthorized alien?

What should I do if I suspect one of my employees is an unauthorized alien?

What are the consequences if I am employing an unauthorized alien?

If you’ve recently asked yourself these questions, you’re not alone.

How Do I Make Sure I’m Not Hiring or Employing an Unauthorized Alien?

Most employers know it is illegal to hire or employ an alien who is not authorized to work in the United States, but determining whether an alien is unauthorized is often more difficult than it seems. With identity theft and document falsification on the rise and steady improvement in the technologies that make this type of dishonesty possible, you may not always be able to distinguish an unauthorized alien from any other prospective employee. Recognizing this fact, Congress and the INS don’t require you to be clairvoyant but, instead, require you only to verify your efforts to employ authorized workers by completing a document called the Form I‑9.

The Form I‑9 must be completed for every employee hired after November 6, 1986. The form is divided into three sections: (1) employee information and verification, (2) employer review and verification, and (3) updating and re‑verification.

In the first section, which must be completed on or before the date employees begin working, they are required, under penalty of perjury, to identify whether they are (1) citizens or nationals of the United States, (2) lawful permanent residents, or (3) aliens authorized to work in the United States. Any individuals stating that they are aliens authorized to work in the country must identify the time period for which they are authorized to work. The expiration date of an employee’s work authorization is very important, because you are required to update the third section of the form before the date you wish to continue employing such a person. But this process needs to be followed only for employees whose work authorizations will soon expire.

The second section of the form documents your review and verification of the papers submitted by the employees to show their identity and work authorization. The types of permissible documentation are listed in the form and include one document or a combination of documents, such as a U.S. passport (expired or unexpired) or a voter registration card along with a U.S. social security card. These documents must be submitted to you within three business days of the employee start date.

You must then review and verify the documents provided by new employees to make sure they reasonably appear on their face to (1) be genuine and (2) relate to the individual presenting them. If a document does not appear to be genuine, you should reject it and ask the employee who presented it for other documentation that satisfies the I‑9 requirements (i.e., as listed on the form).

You can’t demand more or different documents than those listed on the form, and you can’t pick and choose which of those documents you prefer to accept for employee identity and eligibility verification. You can reject documents only if they are questionable (i.e., do not reasonably appear on their face to be genuine or to relate to the individual presenting them). If employee documentation is rejected, another acceptable form of documentation can be submitted for I‑9 purposes. Any employee who cannot produce such documentation can submit a “receipt” showing that application has been made for a document evidencing eligibility to work in the United States. But if the employee fails to provide the documentation within 90 days or otherwise fails to provide other acceptable proof of identity and employment eligibility, you must discontinue his or her employment or face penalties for “knowingly continuing to employ” an unauthorized worker.

Factors that may lead you to question the genuineness of the document are:

• Irregularly cut and pasted photos on otherwise official‑looking documents;

• Typed or irregular insertion of names or identifying information on forms that should be officially printed;

• Questionable card stock that differs from the standard for the type of document at issue; and

• Laminated versions of documents that should not be laminated.

By properly completing the form, verifying all of the documentation has been provided, and updating and re‑verifying the form as needed, you have taken all of the required steps to ensure that you aren’t employing an unauthorized alien.

What If I Suspect I’m Employing an Unauthorized Alien?

First and foremost, you should be reasonable and avoid jumping to unfounded conclusions or letting your imagination get the best of you. And remember, the Immigration Reform and Control Act of 1986 prohibits covered employers from firing or refusing to hire any person (other than an unauthorized alien) because of her national origin or citizenship status. Additionally, Title VII of the Civil Rights Act of 1964 prohibits other forms of workplace harassment and discrimination based on national origin.

But if you have specific facts or some other reasonable basis to question the genuineness of a worker’s documentation of identity or work eligibility, you can simply ask for another acceptable form of documentation. If you need assistance in determining whether the documentation provided is satisfactory, you can contact the INS Office of Business Liaison at (800) 357‑2099 for assistance or consult the INS Handbook for Employers, which is available on its website at www.ins.usdoj.gov.

If an employee provides a social security number that is later determined to be incorrect or appears to belong to someone else, don’t panic. There are various reasons a mismatch between a name and a social security number might occur. In case of such information, you should request that the employee provide other acceptable documentation for I‑9 purposes. If the individual provides new documentation that appears valid on its face, you should then amend the I‑9 accordingly. If such new documentation cannot be provided, you should refer the employee to the nearest Social Security Administration office for assistance. If the matter is not cleared up or other acceptable documentation is not provided, you will not be able to continue that person’s employment.

How Much Trouble Will I Be in If I’m Employing an Unauthorized Alien?

The consequences for employing an unauthorized alien are directly related to whether you know the alien is unauthorized and how many times you have been caught employing an unauthorized alien. Knowingly hiring or continuing to employ an unauthorized alien is a serious offense that can subject you to civil and criminal penalties, which can vary significantly depending on the circumstances. In this context, the term “knowing” includes not only actual knowledge but also knowledge that may fairly be attributed to you through notice of certain facts and circumstances that would lead a reasonable person to know about a certain condition.

Constructive knowledge may include, but is not limited to, situations in which you (1) fail to complete or you improperly complete a Form I‑9, (2) have information available to you that would indicate an alien is not authorized to work, or (3) otherwise act with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into your workforce or act on your behalf.

If you have properly completed I‑9 forms for your employees and don’t have actual or constructive knowledge of hiring or employing an unauthorized alien and the INS subsequently finds that an employee is not actually authorized to work, you should not be charged with a verification violation. You will also have a good‑faith defense against the imposition of penalties if you have done the following:

• Ensured that all employees fully and properly completed Section 1 of the I‑9 at the time they began working;

• Reviewed the required documents and verified that they reasonably appear to be genuine on their face and relate to the person presenting them;

• Fully and properly completed Section 2 of the 1‑9 and signed and dated the employer certification;

• Retained the I‑9 for the required period of time, (i.e., one year from the termination of employment or three years after the date of hire—whichever is longer); and

• Made the I‑9 available, on request, to the INS, the DOL, and/or the Office of Special Counsel for Immigration Related Unfair Employment Practices.

Bottom Line

If you would like to find out more about your rights and obligations under federal immigration laws, contact the INS at the website and phone number listed earlier in this column.

About the author
Robert Palow is president of RP Consultants, a Placentia, CA based company that specializes in labor and employment practices. He has more than 30 years of management and legal experience in the human resource field.