Reprinted from the September 1, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Immigration Compliance Efforts
Net Discrimination Claim

One manager’s solution for resolving questions about an employee’s immigration status put him face-to-face with a discrimination accusation. Luckily, the Department of Homeland Security (DHS) recently proposed regulations that describe procedures for employers to follow when investigating Social Security number (SSN) mismatches or other employment eligibility problems.

NUMBER TROUBLE...
Upper management found out that immigration agency inspectors might be coming to the facility unannounced at any time. The company instructed its department heads to check the records of all their workers’ employment status. Garrison Oakley found that a handful of his employees had questionable SSNs. So he drafted a letter to those workers in both English and Spanish stating that they had 10 days to provide documentation proving they were entitled to work in the United States.

“It’s been 12 days since I gave you that letter,” Oakley told Julio Cordero, who had not followed the instructions.

“But you already have all my documentation on file. I presented an alien registration card, a Social Security card, and signed an I-9 form when I was hired nine months ago. Isn’t that enough proof?” Cordero asked.

“No. There’s a problem with your Social Security number. I can’t allow you to work until you clear up the discrepancy and bring in proof that the number belongs to you,” Oakley said.

Cordero then gave Oakley a Social Security earnings statement, plus a government document showing he had applied for naturalization. Despite those documents, the manager suspended the worker because they didn’t completely eliminate the confusion surrounding the number, which allegedly had been used by someone else.

It later turned out that the SSN did belong to Cordero. Oakley asked Cordero to return to work, but didn’t expect the response he received.

“Before I could come back to work for you, I need an apology in writing and a complete explanation of why I was suspended,” Cordero told him.

“You’re out of line. I don’t owe you an apology,” Oakley abruptly responded right before he fired him.

...MAKES LEGAL TROUBLE
Cordero filed a discrimination lawsuit, which a trial court dismissed on the grounds that the company was only trying to comply with the Immigration Reform and Control Act (IRCA) by auditing I-9 forms. An appeals court disagreed. Appeals court: There was no need for Oakley to be “overly stringent,” i.e., require Cordero to provide additional documents. The court sent the case back to trial for two reasons.

1. Cordero had provided proof at the time of hire that he was legally authorized to work in the United States. Then he supplied a naturalization certificate and Social Security statement, which should have permanently erased Oakley’s doubt about his eligibility. It seems that Oakley had jumped to the conclusion that the employee had used an SSN illegally, despite lacking any strong evidence supporting that belief, and never considered the possibility that another person was misusing Cordero’s SSN.

2. Oakley’s curt response to Cordero’s request for an apology and explanation raised reasonable questions as to whether the manager had an animus against the employee.

ACTION TIPS
If you receive notice: 1) from the Social Security Administration (SSA) that an employee’s name and SSN do not match; or 2) from the DHS that the documents an employee presented in completing an I-9 form were not assigned to him/her, take the following DHS-recommended steps.

Step 1: Check your records for typos and other clerical errors. Correct any errors and inform the relevant agency (SSA or DHS) by either following its instructions or in any other reasonable manner, and verify that the corrected name and number match the agency’s records. Turnaround time: within 14 days of receiving notification from the agency.

Step 2: Ask the employee to confirm that your records are correct. If your records are not correct, correct the error and inform the relevant agency. If the employee says your records are correct, tell him/her that he/she must contact the relevant agency to resolve the problem. Turnaround time: within 14 days of receiving notification from the agency.

Step 3: Fill out a new I-9 form if the discrepancy has not been resolved within 60 days of receipt of the letter. The employee then must submit the required documentation for you to complete Sections 1 and 2 within three days. Turnaround time: 63 days.

Remember: You may not accept any documents containing the SSN in question or receipts from applications for replacement of those documents. You may only accept documents that contain photographs for establishing identity or both identity and employment eligibility.

Step 4: Terminate if the discrepancy is not resolved, or the employee’s identity and work authorization cannot be verified.

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