Ask The Lawyer By: Daniel A. Gwinn, Esq.

EMPLOYERS MUST VERIFY AN EMPLOYEE’S LEGAL RIGHT TO WORK IN THE UNITED STATES

QUESTION: I think one of my employees might be an undocumented alien. The papers he provided when he was hired looked OK, but his lack of English and knowledge of the country make me suspect his papers might not be good. Since I’m not sure, do I have to fire him or report him to Immigration?

ANSWER: First things first: Did you complete the Form I-9 for this employee? If you did not, you are already in violation of the law. If the worker provided documents that appear to be authentic, and you properly completed the I-9 Form, you should have nothing to worry about – UNLESS you have either actual or constructive knowledge that your worker is ineligible to work in the United States. Public employers in Michigan are also required to use E-Verify, the digital system that more quickly identifies any errors in a worker’s documentation.

Actual knowledge means just that – you know for a fact that the worker is undocumented, despite his presentation of authentic-looking documents. Constructive knowledge is less easy to define. If you received a Notice of Suspect Documents from Immigration and Customs Enforcement, you would be viewed as having constructive knowledge that your worker is unauthorized. Similarly, if you received a letter from Social Security, indicating there is a mismatch between the employee’s name and the name associated with his social security number, you could be viewed as having constructive knowledge.

But if you do receive such information, you need to investigate further before terminating the worker or calling immigration. A Social Security name/number mismatch, for instance, can occur for innocent reasons.

Suspicion based on a gut feeling, unsupported by fact, is not enough to warrant firing your employee or calling in ICE. In fact, if you discharge an employee based on subjective suspicion you could end up facing a lawsuit. An employee who is discharged on such grounds could claim he is the victim of discrimination based on national origin or race – both of which are illegal under Title VII of the Civil Rights Act and under Michigan’s Elliott-Larsen Civil Rights Act. A useful guide on how to avoid some of the pitfalls associated with obtaining documentation is available through the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice at https://www.ice.gov/sites/default/files/documents/Document/2017/IER-Flyer.pdf.

There are civil penalties for hiring an unauthorized alien. The penalties can be increased, to possibly include imprisonment, for those employers who engage in a pattern or practice of hiring undocumented workers.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

SK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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