Accessibility Tools

The Latest      —


Written on .

In our March newsletter, we discussed a provision in the U.S. Citizenship and Immigration Services Handbook for Employers, Guidance for Completing Form I-9, which deals with a situation where an employee informs the employer that his or her identity is different from that previously used to complete Form I-9.  The Guidance states that: "In that circumstance, you should complete a new Form I-9.  Write their original hire day in Section 2, and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation.  In cases where employee has worked for you using a false identity but is currently work-authorized, the I-9 rules do not require termination of employment. . . ."  This provision was cited in a technical assistance letter issued on January 8, 2015, by the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), which explained an employer’s responsibilities in this situation.  It indicates that there is no violation 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."

While many employers have consistently terminated employees who falsify their names and/or Social Security numbers, on the basis that they have violated a company policy against falsification of information, the provisions cited above have caused some employers to pause.  Of concern is whether such an employer has consistently followed a policy of terminating all employees who are determined to have provided false information, particularly since it appears common for employees to present documents that are falsified in some manner.

A new case creates additional employer concerns when it terminates or refuses to hire an employee who has previously used a false name or Social Security Number, but now presents documents that reasonably appear to be genuine and relate to the individual.  Guerrero v. California Department of Corrections and Rehabilitation, 127 FEP Cases 1478 (N.D. Cal. September 28, 2015).  In this case, the employer disqualified job applicants who admitted to having used Social Security Numbers other than the one used on the application.  A federal judge in California found that disqualification for such reasons had a statistically significant disparate impact on Latinos, putting the burden of proof on the defendant employer to prove that its use of the question was a business necessity.  The court applied the new EEOC Enforcement Guidance on the Consideration of Arrests and Criminal Conviction Records, and applied the EEOC factors (recency, relevancy and severity) in determining that the employer violated Title VII by failing to apply such guidelines in the case of a previous falsified Social  Security number.

Editor’s Note: Thus, in light of the developments in the Technical Assistance Letter issued January 8, 2015 by the OSC, the recent Guerrero case, and the possibility that the employer could be accused of inconsistently applying its work rules prohibiting falsification of company records, many employers may choose to think twice before immediately terminating employees coming forward with new names or Social Security numbers.

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.

Recent Content

paying for item, indoors, business

Pay Gains Are Shrinking

Everyone can feel the high inflation levels that have been plaguing the U.S. over recent months.  Recent data indicates the high inflatio...
notebook, pencil

Recent Ruling Limits At-will Provisions of Employee Handbook

Most employers have employee handbooks, and most employers have done a pretty good job of including at-will statements therein and statem...
bee hive, outdoors

If You Have a Company Intranet Site, Read This

Many employers have company non-public intranet sites allowing employees to communicate with the company and each other on matters of int...
covid 19 virus, concept

Benefit Adjustments When COVID-19 Emergency Ends

The Biden administration has announced that the COVID-19 emergency will end May 11, 2023.  Employers should prepare now for changes that ...
holding a be the good mug, indoors

No Good Deed Goes Unpunished... but Sometimes the Do-gooder Is Vindicated

The U.S. Court of Appeals for the Eleventh Circuit just held - shock alert! - that paying an employee more than is legally required does ...
promo graphic for Strategies for Coping with Labor Shortages

Where Have All the Workers Gone? Strategies for Coping with Labor Shortages

The declining workforce participation is resulting in job vacancies almost double the number of available employees.  This webinar will e...

Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

Where Experience Counts

Thank you for visiting the firm's website. Please note that this website is intended for general information purposes only and does not constitute an offer of representation or create an attorney-client relationship with the firm. The firm welcomes receipt of electronic mail but the act of sending electronic mail alone does not create an attorney-client relationship. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the firm's copyright notice.

© Wimberly, Lawson, Steckel, Schneider & Stine P.C. | Site By JSM