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Mar 10, 2020

The Supreme Court Says Form I-9 Information Can Be Used Against Employees

David Spaulding

Ramiro Garcia Likely Knew He Was Taking a Risk in Using Someone’s Social Security Number to Work in the U.S.  He Probably Didn’t Expect to Be Prosecuted for It

Every person we employ in the U.S. has to complete a Form I-9, Employment Eligibility Verification form (“Form I-9”).  On page one of the form, an employee states their work authorization; like “citizen of the United States” or “Aliens authorized to work…”.  On page two, employers document what the employee presented to show they could work.  If the document presented to us reasonably seems valid, we write down information from it, check the form, complete our parts, and then make sure that everything is signed and dated.

Employers Have the Burden to Employ Only Authorized Workers

The burden is on the employer to make reasonably sure that we both employ authorized workers and document their work authorization correctly.  The federal, many states, and some local governments employ worksite and workforce enforcement to verify that we’ve done our piece of the job; the consequences of failing to complete the forms correctly or verify work status are significant.

It is settled law that the burden is on the company to employ only authorized workers and to document that correctly.  Worse for employers is that discrimination lawsuits often follow asking for more documentation than is required to verify someone is who they claim to be and is allowed to work in the U.S.  As one client put it, “it doesn’t make any sense that the government insists I make sure everyone is allowed to work here and then helps them sue me when I do that.”

What About the Employee Who Knows they Are Working Without Authorization

Many people, in and out of government, share the view that foreign nationals working without authorization should share some of the penalty with companies unintentionally employing people who don’t have authorization.  After all, the person presenting false documents or who presents valid documents but isn’t allowed to work, most often knows their status.  Employers are in something of a catch-22 if they have to rely upon false presentations of eligibility to work in the U.S. and are subjected to penalties for doing so.

As we discussed back in October, Kansas v. Garcia is an example of government seeking to sanction employees for working without authorization.  The underlying case makes for interesting reading but the crux of the matter before the U.S. Supreme Court (“Court”) was whether someone can be prosecuted for using false identity and work authorization documents or information.  The Court says that they can but that the prosecution can’t be for false representations on the Form I-9 and can’t be for working without authorization.  Stated differently, the Court says that Kansas prosecuted Ramiro Garcia correctly because they used the information on the Form I-9 only for the investigation, not as evidence in prosecution, and because they prosecuted him for identity theft, not for working without authorization. 

This matters a great deal for foreign nationals who work here.  It means that those working lawfully need to be documented properly in employer records and that any updates are correctly recorded.  For unauthorized workers, it is yet another piece of an increasingly robust enforcement infrastructure that makes working unlawfully difficult.

Unauthorized workers have to worry about immigration raids, Form I-9 Audits, Social Security No Match Letters, FLSA investigations, state E-Verify laws, and now prosecution for identity theft.  For employers, the reasonableness standard remains the same; we review the documents presented.  If the documents look good and there are no outside factors which point to the employee being unauthorized to work, we complete the Form I-9, take a copy of what was presented, and proceed with the rest of the onboarding process.  Finding out that an unauthorized employee slipped past our system should cause us to revisit our policies and procedures.

What’s the Bottom Line for Employers

The employer’s role is to reasonably administer the Form I-9 process.  We avoid employing unauthorized workers and avoid asking for more than we have to.  If we take that seriously and get outside eyes on our operations from time to time, employers are likely to be OK.  Workforce and worksite enforcement is just another policy and process and should be approached like we do administration of benefits and our finances.  We set up policies and procedures that have built in checks and then bring in outside auditors from time to time in order to both verify our systems and results and document our due diligence.

The Green and Spiegel Compliance and Regulatory Practice  is here to help.  We are discrete, effective, and efficient.  Please give us a call if we can help.

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David Spaulding

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