In light of potential immigration reform, we encourage employers to revisit their personnel policies with respect to misrepresentations that may have been made in connection with the employment process. Specifically, many companies have policies in place that do not allow for individuals who have provided false or misleading information in connection with obtaining employment to remain at the company. This begs the question – if it is OK to lie to your employer about who you are in order to obtain employment, what else is it OK to lie about? If it is OK to obtain false documentation to work illegally, what other illegal activities are OK? If you agree to overlook certain information for one employee, must you overlook it for other employees? Where do you draw the line?
This has already been a very tangible issue for many employers. Last summer, certain immigrants who came to the United States as children without valid immigration status, became eligible to apply for U.S. work authorization under the Deferred Action for Childhood Arrivals (DACA). Some of these individuals may have already been employed in the U.S. using false or fraudulent documentation or by representing themselves as legally authorized. However, after applying for and being granted a valid work permit under the DACA program, these employees may have approached their employer to “update” their information. Providing new documentation with different information – new names, or birthdates or pictures, puts both employers and employees in a difficult spot. Alerting the employer to the existence of the previously false documentation may put the employee at risk of termination. Employers who choose to take action, or not take action, once they are aware that the employee provided false documentation, risk taking action that is inconsistent with their policies and therefore diminishing the integrity of those policies when violations, unrelated to immigration, occur in the future.
At first blush, it would seem that employers, seeking to maintain the integrity of their corporate policies require adherence to all applicable laws, as well as personal integrity and truthfulness, have no choice but to terminate the employment of individuals who reveal that earlier documentation provided to satisfy the Form I-9 was invalid. Many employers enact “zero tolerance” policies for dishonesty and violations of policy and/or law. This “zero tolerance” allows for consistent response to policy violations and reduces an employer’s risk of employee claims of unfair treatment.
Employers may wish to think forward about possible changes in their workforce if Comprehensive Immigration Reform (or a substantial change in law that allows for previously undocumented immigrants to obtain U.S. work authorization) and address these policy issues in anticipation of these changes. Some employers, with a small portion of their workforce impacted by such a policy, could take the position that a loss of employment is the risk the foreign national took when they knowingly worked illegally in the US. However, in a climate where a change in U.S. immigration laws allow an individual who was undocumented to apply for a so-called amnesty provision — and even goes so far as to provide guidance for employers on how to complete the Form I-9 when information in Section 1 (name, birthdate and status) have changed – can and should U.S. employers follow suit and provide amnesty as well in support of the government’s actions?
The repercussions of employer actions that are contrary to the efforts of the government could have damaging effects on an already fragile economy. Employers should be thinking about this now when they have time to consider the potential impact holistically. This is not a decision to be left solely in the hands of one department as it impacts all of an organization’s operations and culture. The future of immigration policy in the US is still uncertain, but employers should prepare now for how they will respond to change considering both the impact to policy and liabilities as well as culture, operations and their impact on the communities in which they operate.