OSC Guidance: Employee Admits Original I-9 Documents Were Fraudulent

On January 8, 2015, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL) concerning potential discrimination issues arising when an employee presents an employer with new work authorization documents and admits that documents originally presented during the I-9 process were not genuine. The question is whether this situation will cause the employer any discrimination issues if it chooses to keep or terminate the employee based on this new information.

The OSC could not identify any violation of the anti-discrimination provisions of the Immigration and Nationality Act (“INA”) when an employer consistently accepts documents that employees choose to present that reasonably appear to be genuine and relate to the individual, regardless of whether an employee admits that the documents previously presented for employment eligibility verification were “not real.” Nor could the OSC identify any violation when an employer allows an employee to continue employment under the circumstances presented. However, to the extent an employer rejects valid work-authorization documentation or terminates employees because of their citizenship status or national origin, the employer could violate the anti-discrimination provision if the employee is treated differently than other employees because of their citizenship status or national origin.

Interestingly, in the January 8, 2015 TAL, the OSC cites to the USCIS Handbook for Employers, Guidance for Completing Form I-9 (Form M-274 Rev. 04/30/13), which fails to discuss the honesty policy. Instead, the Handbook states:

[There are situations] where an employee informs you or you have reason to believe that his or her identity is different from that previously used to complete the Form I-9. For example, an employee may have been working under a false identity, has subsequently obtained a work authorized immigration status in his or her true identity, and wishes to regularize his or her employment records. In that circumstance you should complete a new Form I-9. Write the original hire date in Section 2, and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation. [Thus] the I-9 rules do not require termination of employment.

Id. at 24.

The OSC notes an employer with a consistently-followed policy of terminating individuals for providing false information during the hiring process may have a legitimate non-discriminatory reason for the termination. Accordingly, the OSC concluded whether such a termination violates the anti-discrimination provision depends upon the facts presented.

The OSC has faced similar questions on the “dishonesty” policy in at least two previous Technical Assistance letters – November 1, 2012 and June 10, 2010. In its November 1, 2012 TAL, the OSC cited two OCAHO decisions related to this subject.  In Simon v. Ingram Micro Inc., 9 OCAHO no. 1088 at 14-15 (2003), OCAHO discusses previous cases holding that termination for misrepresentations or dishonesty is a legitimate nondiscriminatory reason. The OSC, in Aguirre v. KDI American Products, Inc., 6 OCAHO no. 882 at 659-60 (1996), stated refusing to hire or rehire someone who has presented false employment eligibility documents or made a false statement on the application and I-9 form is not likely to violate the anti-discrimination provision if the company’s honesty policy was applied consistently.

In the June 10, 2010 TAL, OSC was asked whether an employer may terminate an employee who was not initially authorized to work but is now authorized, based upon a company’s honesty policy. OSC responded that employers risk violating the anti-discrimination provision of the INA when terminating an employee in this context unless they can demonstrate that they have a previously established honesty policy that is consistently applied to employees who make false representations on their application or other forms without regard to citizenship status or national origin.

It’s also important to note that the January 8, 2015 TAL fails to discuss any implications of state law in the factual situation presented. Under California law, employers may not discharge, discriminate, retaliate, or take any adverse employment action against an employee for updating or attempting to update personal information “based on a lawful change of name, social security number, or federal employment authorization document” (i.e., permanent resident card or Employment Authorization card). Thus, if a California employer relies upon this most recent TAL to terminate an employee, who presented a new Employment Authorization document after previously providing a false green card based upon its dishonesty policy, it could be in violation of California law.

Take Away

Issues arising out of an employee presenting new work authorization documents can be complicated. Employers need to be careful that they are following a consistent practice in applying their honesty policy and are aware of any applicable state laws. If you don’t, one may face an OSC investigation or a state lawsuit.