The U.S. Department of Justice’s Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices issued on January 8 a technical assistance letter dealing with the situation in which a worker presents new work authorization documents, admitting that previous documents were false.
In this situation, an employer has accepted an employee’s work authorization documents that appear genuine, but the employee presents later new identity and work authorization documents, stating that the previous documents were not real. In this difficult, but common situation, employers rightfully can become concerned whether this situation opens the employer up to any discrimination issues in any way if it chooses to keep or terminate the employee.
The law firm of Wimberly, Lawson, Steckel, Schneider & Stine, an NCC allied member, has analyzed the OSC assistance letter and points out that OSC cautions employers that terminating all employees who falsify documentation to the company may result in discrimination claims, unless the employer has consistency followed a policy of terminating all employees who are determined to have provided false information.
The law firm also pointed out that the OSC letter cautions that an unfair documentary practice occurs when an employer rejects valid form I-9 documentation, demands more or different Form I-9 documentation, or requests specific 1-9 documentation based on an employment-authorized individual’s citizenship state or national origin.
Wimberly, Lawson, Steckel, Schneider & Stine’s complete analysis of the ramifications of the OSC letter regarding these important issues is available here.
