Immigration Laws and the Risk of Employment Discrimination Claims

As political forces churn public discussion on undocumented workers and border security continues to be front page news, employers must be increasingly vigilant about immigration issues confronting the American workplace.

Since 2006, the federal government has significantly increased its enforcement of federal immigration laws that require employers to verify their employees' legal authorization to work in the U.S. At the same time, employers are legally obligated to prevent discrimination in the workplace on the basis of citizenship and national origin. As a result, employers are increasingly required to confirm their employees' immigration status, at the risk of exposure to employment discrimination claims in the process. However, there are some steps employers can take to manage this risk.

Current Law
As many business owners already know, the Immigration Reform and Control Act of 1986 criminalized the willful or "knowing" hiring of illegal immigrants, while prohibiting employers from discriminating against workers based on national origin or citizenship. Under the law, an employer can be found to have "knowingly" employed an undocumented worker even if the employer did not have actual knowledge of the worker's ineligible status. This means that employers with "constructive knowledge" of a worker's ineligibility - for example, if the employer ignored available information that would have indicated that the individual was not authorized to work - may face criminal and civil sanctions. Accordingly, employers are well advised to cautiously approach inquiries from government agencies concerning potentially undocumented workers.

Steps to Manage Exposure
There are not yet any specific legal guidelines nor any "safe harbor" that would help employers know precisely how to avoid liability when faced with an inquiry about the hiring (or continued employment) of unauthorized aliens. Still, employers must respond to these inquiries in a reasonable manner, and must fully comply with immigration laws. We advise employers to take the following steps to address this potential legal tightrope:

1. SSA 'No Match' Letters. Follow the guidance set forth in any "no match" letter received from the Social Security Administration, including referral of the impacted employees to the local SSA office to resolve the noted discrepancies.

2. Confirm Current Authorization. Require each employee to provide current identification verification information required by the I-9 form (as if they were new hires), to document that the employees are currently authorized workers. Photocopy any documentation provided, such as a drivers license or social security card. If a worker was previously unauthorized (e.g. by using someone else's identity), but has subsequently become an authorized worker, you may either continue to employ or terminate that employee. However, do not ask the employee directly whether he or she is authorized, as it could be viewed as discriminatory, retaliatory, or harassment. In any event, you would not be able to readily rely on the employee's answer even if you did ask that question directly.

3. Investigate. Obtain and review copies of the I-9 documentation that was provided upon initial employment, as well as the documentation that was provided by each employee in response to each of any previous 'no match' letters.

4. Look for Flaws. In reviewing this documentation, determine whether there appears to be any obvious clerical errors that should have been previously remedied. Also look to see whether the documents show any obvious patterns or vacillation in the way the materials were completed, such as including a hyphen in a name one year, and then removing it the next year, or constantly changing the spelling of their name.

5. Consult an Attorney. After going through the four steps above, and after the employee reports back after having visited the SSA office, contact your legal counsel immediately if you have reason to believe that the person is in fact an undocumented or unauthorized worker. Employers may be in a position to discipline the employee at that point, by terminating the employee or by giving the employee a specified number of days to conclusively demonstrate that the 'no match' issue has been completely resolved before facing termination.

Proposed Changes to the Current Law
This situation has become a hot topic within the last year. In 2006 the Department of Homeland Security, together with the Bureau of Immigration and Customs Enforcement, proposed a new federal regulation that would, among other things, provide a detailed roadmap for employers to follow in responding to 'no match' letters. If adopted, the proposed rule would create a safe harbor under which employers who follow the rule's steps may avoid the possibility of criminal and civil sanctions for employing undocumented workers.

Some members of Congress have also apparently recognized the need to implement a better worker verification system. A major piece of immigration legislation - H.R. 1645, or the "Strive Act of 2007" - has been proposed in the U.S. House of Representatives. Title III of that bill relates to employee verification, and includes a safe harbor provision for employers.

Importantly, neither the proposed regulation nor the Strive Act have been adopted, and neither can currently be relied upon by employers. However, given the attention that immigration policies are getting nationally and the level of public discourse on the topic, it would not surprise us if these and other significant legislative or regulatory changes are made in the next several months.

Other Steps to Minimize Risk
Employers should also make sure that their published workplace policies prohibit discrimination, including discrimination on the basis of citizenship and national origin. If you would like more information about immigration laws affecting your business or how to manage the risk of employment discrimination claims, please contact Randall L. Duncan, Chair of our Closely Held Business Team, or Robert Kerr, a partner in Dunn Carney's employment law practice group. We will be happy to accommodate your request.

Closely Held
Business Team

The Closely Held Business Team - Dunn Carney is dedicated to assisting business owners in navigating through the opportunities and challenges the law presents to advance each owner’s success in business. They understand the multifaceted issues business owners face each day and the need for responsive and proactive legal counsel.

Team members include:
Randy Duncan, Team leader
Bob Allen
Shane Antholz
Ric Ashe
John Barhoum
Merrill Baumann
David Buono
Brian Cable
Jack Cooper
Ken Davis
Tim Hering
Frank Hilton
Elizabeth Howard
Scott Jonsson
Robert Kerr
JoDee Keegan
Kelly Martin
David Rossmiller
Eric Smith
Kyle Stinchfield
Dan Vidas
Matt Wilmot
Bob Winger
David Zehntbauer