Employers in the Central Valley have long understood the importance of compliance with immigration law to maintain a viable workforce.
With the election of Donald Trump, national attention has been sharply focused on numerous immigration-related issues. Employers are well-advised to take this opportunity to audit their compliance with the most basic of their obligations under federal law: I-9 compliance.
As usual, this article will provide only a summary of issues and concerns relating to immigration law compliance in the workplace, and does not substitute for the advice of counsel.
All employees are required to complete Form I-9, no later than their first day of employment, to demonstrate their identity and eligibility to work in the United States. Employers must have new hires fill out an I-9 when they start work.
Within three business days of their start date (not including the day they start work), new employees are obligated to provide original, unexpired documentation to support their I-9 responses. Employees may choose what type of documentation to provide from lists of the acceptable options, and the employer cannot demand either particular or additional documents if the document provided by the applicant meets the I-9 requirement. For example, if a new hire presents a valid driver’s license and a certified birth certificate, an employer cannot also ask the employee for a social security card.
When presented with the I-9 and documentation, the employer must examine the materials in the presence of the new employee. This step gives the employer the opportunity to confirm that the documentation appears to be legitimate and to relate to the new employee. If the materials appear reasonably genuine on their face and relate to the individual, the employer must accept them. If an employee fails to deliver satisfactory documentation within three days, the employer may discharge the individual.
That said, an employer is not expected to be a document expert.
If the picture on a driver’s license does not resemble the individual who presented it, an employer may reject the documentation and ask for another acceptable document.
However, if the name on a document does not match the name given on the I-9, an employer can still accept the materials if there is a reasonable and supported explanation for the discrepancy, preferably with corroborating information. As long as an employer reviews the materials, reasonably believes they are genuine, and concludes that they relate to the employee, the employer can rely on that documentation.
An issue can arise regarding the “re-hiring” of an employee. For example, an employee works for an employer for a time, leaves to pursue other things and then comes back to work for the same employer later. If the rehire occurs within three years of the execution date of the worker’s original I-9, an employer can use that same form and complete Section 3, which concerns re-verifications and rehires.
A challenge can arise if the applicant for re-hiring presents information or documentation that does not match the information provided when they were first hired. Any material change in information provided necessitates completion of a new form, along with retention of the original form. However, if an applicant’s paperwork is complete, and his or her current documentation appears genuine in the opinion of the employer, there is no obligation to report any discrepancy with paperwork previously submitted by the same person.
According to USCIS guidance, if the employee is currently authorized to work, an employer is not obligated to terminate the employment or to report its concerns about the employee’s prior conduct.
Employers should also bear in mind that the law prohibits discrimination on the basis of an employee’s actual or perceived citizenship, immigration status or national origin. Simply put, if an individual is authorized to work in the U.S., employers cannot discriminate against them because they look or sound “foreign.”
Given the new administration’s ongoing focus on immigration issues, employers should mirror that focus and revisit their employment eligibility verification procedures generally and remedy any glitches in their systems or paperwork.
–Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at [email protected]