What should an employer do when an employee updates her personal information and it reveals that false information as to legal immigration status was previously submitted? It may depend upon where she works.
Since the passage of the Immigration Reform and Control Act (IRCA) in 1986, employers have been “deputized” by the U.S. government to enforce some of the country’s immigration laws. IRCA requires employers to complete and maintain I-9 Forms and review documents demonstrating an employee’s identity and work authorization. It also holds employers liable if they have “constructive knowledge” or “actual knowledge” that an employee is not authorized to work in the United States. Under IRCA, an employer is obligated to terminate or suspend an employee if the employer has knowledge that the employee is not authorized to work in the United States.
Whena long-time employee presents a new name, birthdate or social security number to a human resources professional, which implicitly or explicitly reveals that false information as to legal status in the United States was previously submitted, the employer is put in an uncomfortable position. The employer may conclude that it has “constructive knowledge” or “actual acknowledge” that it had been employing an unauthorized worker.
The Department of Justice has instructed that the employer may continue to employ an individual after she has updated documentation because now she is legally here and has “regularized” her status. However if the employer has an “honesty policy” requiring employees to be truthful in their dealings with the employer, it may have an obligation to terminate her because of the false information she previously provided, or be vulnerable to a charge of discrimination by other employees, who are terminated under the policy. That would be the consideration in New York and most other states, but not in California. Effective, January 1, 2014, “employers may no longer discharge, discriminate, retaliate, and or take any adverse action against an employee because s/he updates or attempts to update personal information with an employer, unless the changes are related to skills, qualifications, or knowledge related to the job.” Cal. Lab. Code § 1024.6 (AB 263). The impact of this provision is significant as it prevents the employer from terminating an employee for lying about his or her identify, participating in identify theft and subjects the company to not insignificant administrative costs that are associated with correcting and amending I-9 forms, Social Security withholding records, tax records and other corporate records. Particularly since according to the California Labor Federation “almost one-quarter of all undocumented immigrants in the U.S. live in California and one in 10 workers is undocumented.”
New York, also regarded as very much a pro-immigrant state, has not passed such comprehensively immigrant friendly legislation and has no law such as that in California. At the other end of the spectrum, in Arizona, the employer might be investigated for not discovering the identity theft in the first place!