The interplay between I-9 compliance and anti-discrimination regulations presents a major dilemma for employers. Generally, employers are required to accept facially-valid documents from the I-9 acceptable documents list without further inquiry. However, there are certain situations in which the employer would have a duty to inquire further about an employee’s status under the government’s “constructive knowledge” standards in order to avoid a charge of knowingly employing an unauthorized worker – for example, when placed on notice by Immigration and Customs Enforcement (ICE) or through other reliable sources. Importantly, employers should never rely solely on rumor or hearsay when making a decision regarding further inquiry or termination. A common problematic situation is when an employee presents new documents and admits that the previously-submitted I-9 documents were not real.
A Technical Assistance Letter (TAL) from DOJ’s Office of Special Counsel (OSC), issued on January 8, 2015, discusses this situation. The OSC enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA). One of the ways in which OSC educates the public is by responding to written requests for technical assistance about the anti-discrimination provision.
The January 8th TAL provides general guidelines regarding discrimination concerns when an employee presents new work authorization documents and explains that the documents originally presented were not genuine. OSC referred the employer to the Handbook for Employers, Guidance for Completing Form I-9. According to the Handbook, in this situation the recommended course of action would be to complete a new Form I-9 and to include a written explanation. The Handbook also states that the I-9 rules do not require termination of employment, so long as the presented new work authorization is facially-valid. If the employer wishes to terminate the employee in this scenario, the rules are more complex and may implicate discrimination concerns.
The January 8th TAL states that an employee terminated under the above circumstances could allege citizenship status discrimination, national origin discrimination, or unfair documentary practices. The TAL clarifies that whether or not such termination would violate the anti-discrimination provisions depends on the specific facts presented. For example, 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.
Generally, if a properly-completed form I-9 is already on file and does not require re-verification, employers should not make further inquiry or terminate an employee based on the outcome of such an inquiry, unless solid information or proof is available to indicate that the employee is currently not authorized to work in the U.S. It is important to carefully evaluate each situation and determine what the proper course of action would be. As this analysis involves complex legal issues, employers should utilize the assistance of experienced immigration counsel.