Category: I-9 Compliance

When an Employee Lies on the I-9 Form

 

Can an employer fire an employee when they find out that information provided in the I-9 process was falsified?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. Employers contact us from time to time wondering what they should do when they find out that an employee has lied in the I-9 employment verification process. Most people who have been through the hiring process and have completed the paperwork that goes along with starting a new job are familiar with the I-9.

The I-9 is a form that the Immigration Service uses to require employers to document that an employee is who they say they are, and that they have authorization to work in the United States. You may recall that there is various columns of documents, identifying documents and documents that show that you have work authorization to allow you to be employed in the United States. Almost everybody who has ever had a job would have filled out one of these I-9s. The question then becomes, what happens when an employer finds out that the employee has lied or provided false documents and what should the employer do in that situation? Many wonder, “Can I fire the employee? Do I have to fire the employee?”

We’re shooting this video to try to explain to you what’s going on in these situations. We were doing research recently for a local company that had found out that one of their employees had lied on the I-9, and we came across a case that we found very instructive on this point. In the case that we found, there was an older Hispanic woman who had worked for a grocery store for many, many years, and she had provided false documents at the time of her hiring, and later on, when she got actual work authorization to be employed in the United States, she brought that documentation to her employer.

Here we have an employer who’s been provided two different sets of identifying documents, two different sets of work authorization cards, and the employer was really left scratching their head as to what to do. They were worried that if they fired the employee, that they could get in trouble, but they went ahead and terminated her because they had a firm-wide policy, not just with I-9s, that if you lied at all during the hiring process, it could be about a crime or your identity or any other kind of issue, if you had lied about any of that prior to your starting the work, then the employer had a blanket policy of firing those employees. The employer went ahead and fired the employee.

The employee brought a claim through the union grievance procedure against the employer saying that she was being discriminated against because of her Hispanic heritage and that now that she had proper work authorization, that that should end the inquiry, that the employer should not look back to the documents that were provided previously. Now, this case went on for a while. Both sides exchanged documents. There were depositions taken, and the case was sent to the OCAHO for review, and that agency determined that the employer had properly terminated the employee.

They found that because the company had a blanket wide policy of firing people when they are caught lying during the hiring process, that it was okay for the employer to terminate the employee at this time, even though she had valid work authorization. We conveyed that information to our client here, and they’re going to make their own determination as to whether or not they terminate this employee. These are the things that you have to keep in mind.

You need to be consistent in how you treat employees. You need to be consistent with your I-9 recording procedures. You need to make sure that your I-9s are properly documented and that you have all the Ts crossed and the Is dotted. You don’t want to do anything that messes up your I-9 system.

If you find an error on your I-9, you need to document it. You don’t ever want to erase the old I-9 information. You don’t want to destroy old I-9 information. You want to document for this particular employee everything that’s happened from start to finish so that if you ever get audited by ICE that you’re going to be able to explain adequately what it is that you did with this particular employee. I would not terminate an employee without speaking with a legal counsel and making sure that you make sure everything, do everything correctly.

If you have any questions about this, be sure to give us a call at 314-961-8200, or you can email us at jim@hackinglawpractice.com.

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VIDEO: What should an employer know about I-9 storage and recordkeeping?

Anyone who’s ever been hired in at a job should have filled out an I-9 employment verification form. Employers are required by law to verify that the person who’s working for them has authorization to be in the United States and to be working. Typically, this is done with a US passport or a US birth certificate. That establishes the right to work for citizens and that, couple with a driver’s license or other form of acceptable photo ID, will be enough for US citizens.

For green card holders, the same thing. If you have your green card and proof of identification, you too can establish you right to work in the United States. For other people, you’re going to need actually employment authorization. That can be done with a EAD or, Employment Authorization Document, and a social security card so that the records are kept that you have the ability to work in the United States and all your income is properly tracked.

A lot of times people are wondering, with the I-9, how long do I have to keep it? The answer to that is simple. Either you keep it one year after the person’s termination date, or if they’ve worked less than three years, then you keep it at the end of the three-year period.

So, if someone were to start on January 1st of 2014 and to work through, say, July 1st of 2014, the employer would keep that I-9 for three years. If the person worked for four and a half years, then they would just be required to keep it for one year after the termination of the employment.

Some people have questions too about storage of the I-9. The best practice is to keep all of your I-9s together. If it’s your custom and practice at the company to take a photocopy of the driver’s licenses and other identifying documents, that’s fine, but you need to keep those stapled to the I-9 itself. And if- You can’t just pick and choose which people you require that kind of identification from. If you’re going to do it for one person, you need to do it for everybody. You need to make sure you don’t single out non-citizens or people who may be perceived as not having work authorization for different treatment.

Employers have been known, especially in the Obama administration, to get in trouble for not properly treating everyone the same. So, a best practice is to keep all of your I-9s together. So, if you staple the identifying information to an I-9, you want to keep all of your I-9s together. You do not want to keep your I-9s in a personnel file, because when you do that, if the Immigration service were to come in and check I-9s, they’d be entitled to look at your entire employment file, not just the I-9s themselves. So, best practices is to keep them in a binder or separated folder for the purposes of I-9 and to keep them in the length of time that we discussed earlier.

If you have any questions about employment authorization or about the I-9 process, feel free to give us a call: 314-961-8200, or you can always shoot me an email at jim@hackinglawpractice.com. We would be happy to help you out. Thank you.