New California Laws Impact Immigrants and Raise Interesting I-9 Dilemma

Effective January 1, 2014, California has new laws that provide California workers, who are seeking to change their personal information, or exercise their workplace rights, with expanded protections against adverse employment actions, including specific protections for immigrant employees.

Updating Personal Information, including Social Security Numbers

Under Assembly Bill No. 263, employers may no longer discharge, discriminate, retaliate, or take any adverse action against an employee for updating or attempting to update personal information, including providing a new Social Security number, unless the changes relate to skills, qualifications, or knowledge required for the job. This should prevent an employer from discharging an employee who presented false documents/information in the I-9 process.

Companies in Other States have Three Choices

In other states without this type of law, an employer is faced with a dilemma when a current employee informs management that he/she has previously been using an alias name or a “fake” or “fraudulent” Social Security number or Employment Authorization Document (EAD). At that point, employers essentially have three choices based upon their employment policy and/or practice.

First, accept the new name, EAD or Social Security card, have a new I-9 form filled out and attach the old I-9 form to the new one with an explanation of the circumstances.  This option should only be utilized if a company does not have a policy or practice of automatic termination for presenting fraudulent documents or lying on a company or government document.

Second, inform the employee that the company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company document. Thus, the employee must be terminated. However, if the company does not have a policy prohibiting their re-hire, it may offer to re-hire the employee and fill out a new I-9 form with an explanation of the circumstances.

Third, inform the employee that the company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company or government document and that employee is not eligible for rehire. Thus, the employee must be terminated without a chance of rehire. This action may be the only act for an employer if it wants to remain consistent with its policy.

Which Option Should You Choose?

The option that a company chooses will be dictated by your company’s policy and/or practice. If you don’t have a policy concerning employment of employees who have presented fraudulent documents or lied on a company document, you should consult with a qualified attorney to develop an I-9 policy that addresses this situation. Remember, always be consistent in your practices. If you retain an employee with a new Social Security number, after he admitted previously providing fraudulent document, then, you may have to retain an employee who lied on his application about a felony conviction or other action.

California statute also Covers Retaliation

The California statute defines an “unfair immigration-related practice” as one where an employer has engaged in retaliation for the exercise of a workplace right.  Protected rights include complaining about unpaid wages, informing another person about workplace rights, or seeking information to determine if an employer is in compliance with workplace laws. An “unfair immigration-related practice” is defined to include:  requesting more or different documents than those required under federal I-9 rules during the Form I-9 employment verification process; refusing to honor documents that, on their face, appear to be genuine; using the federal E-Verify system to check work eligibility in a manner not required or authorized under the program; and threatening to contact or contacting immigration authorities. A court may order the suspension of an employer’s business license if a violation is found.

Employers violate the law by reporting or threatening to report to a government agency the suspected citizenship or immigration status of an employee, a former employee, or a prospective employee, or that of a family member, in retaliation for the employee’s exercise of a right under state or local labor laws.

Conclusion

As more and more employees obtain legal status through DACA, provisional waiver or marriage to a U.S. citizen, it is only natural that some employees will want to supply the company with their correct personal information. The California law seeks to protect these employees. However, in other states these immigrant workers have no such protection.

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Bruce E. Buchanan is an Attorney at the Nashville and Atlanta Offices of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on employer immigration compliance, as well as employers in employment/labor law matters. He is Past-Chair of the Tennessee Bar Association’s Immigration Law Section from 2011 to 2012 and has been the editor of the TBA’s Immigration Law Section Newsletter and the TBA’s Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and the United Cerebral Palsy of Middle Tennessee and Middle Tennessee Seminole Club. He is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors (ABC).