September 23, 2013

Background

The U.S. Citizenship and Immigration Service (C.I.S.), formerly known as the U.S. Immigration and Naturalization Service (I.N.S.), requires employers to complete Form I-9 for each individual they hire for employment within three working days of the new employee’s employment. On the form, the employer must verify the individual’s employment eligibility by identifying documents presented by the employee and recording the document information on the Form I-9. Acceptable documents for this purpose are listed on the back of the Form I-9 and at the end of this article. (See Tables A-C for a listing of these documents.)

In completing this task, employers may not question a new employee’s citizenship. They may only ask whether the individual is legally eligible to work in the United States. An individual who provides the appropriate paperwork, as listed on the Form I-9, is presumed to be eligible to work in the United States. Nonetheless, it has become apparent, especially in the construction industry, that a growing percentage of workers who are hired by contractors, have presented forged documents or have taken on someone else’s identity.

With the sophisticated technology available today, it is difficult for employers to determine whether or not the paperwork they are given by new employees to verify their eligibility to work in the United States, is authentic. Many employers receive notices from the Social Security Administration (SSA) informing them that the social security numbers, which they have provided for employees do not match with the information maintained by the SSA. Still, the employers are warned not to take adverse action against these employees, but to only verify that the information they have provided to the SSA is accurate based upon information obtained from the employee. As a result, unless the employer has evidence to the contrary, it must assume that the paperwork is valid.

For the most part, construction employers are satisfied with the process they are required to perform to verify employment eligibility. They have little or no resources to investigate whether paperwork is authentic or fake. Some may believe that an illegal immigrant will work harder and will avoid filing worker’s compensation claims than an employee legally in the United States.

Actions Against Employers

Employees who are legally eligible to work in the United States (“legal employees”), and who work side by side with illegal immigrants, resent the employment of hiring illegal immigrant workers. Indeed, they have begun to fight back. In a series of recent lawsuits, employees have sued their employers claiming that the employers knowingly hired illegal immigrants in order to keep wages low and unions out of the workplace.

In Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002), a class of legal employees alleged that two employers and their labor recruiter artificially deflated wages by means of a racketeering scheme to hire illegal workers at very low wages. Specifically, the legal employees claimed that these employers knowingly hired illegal immigrants in violation of immigration law, and that they were direct victims of the alleged illegal conduct with resulting damages by way of lower wages. The Ninth Circuit disagreed with the trial court’s finding that the alleged damages to the workers were indirect and too speculative. Rather, the Ninth Circuit ruled that the legal employees could show they were direct victims of the alleged illegal conduct and that the alleged damages were plausible enough to survive a motion to dismiss. Back at the trial court level, this case has now been certified as a class action.

Similar allegations have also been made by legal employees in Trollinger v. Tyson Foods Inc., 370 F.3d 602 (6th Cir. 2004) and Williams v. Mohawk Industries Inc, 411 F.3d 1252 (11th Cir. 2005). Each of these cases have withstood motions to dismiss in the Sixth Circuit (reversing trial court’s dismissal of case) and Eleventh Circuit (affirming trial court’s decision denying dismissal of case), respectively. Both the Sixth and Eleventh Circuits specifically found that the legal employees alleged direct damages related to the hiring of illegal immigrants.

Only one case, to date, has dismissed similar allegations on the basis that the damages are too speculative and the harm to the legal employees was indirect. In Baker v. IBP Inc., 357 F.3d 685 (7th Cir. 2004), legal employees alleged that their employer and a labor recruiter operated a “scheme” to hire illegal workers who presented false documents. Unlike other cases noted above, the Seventh Circuit dismissed this case on several grounds. The grounds for dismissal included that the union, which bargained with the employer about wages, and was found to be an indispensable party, had not been sued by the employees. Furthermore, the employer and the recruiter did not have a shared purpose sufficient to allege a scheme. In addition, the court found that the alleged damages were too speculative.

Conclusion

Given these decisions, an employer should carefully review their employment eligibility procedures to make sure that it has taken the proper steps in verifying employee eligibility. Form I-9 should be filled out completely, dated and signed by the appropriate individuals. A photocopy of the documents relied upon to verify employment eligibility should be attached to the Form I-9 and placed in the employee’s file. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by the authorized U.S. Government officials.

If an employer receives evidence that the documentation presented to verify employment eligibility has been stolen, is forged or is fake, the employer should conduct a prompt and thorough investigation. If the results of the investigation demonstrate that the paperwork submitted to verify employment eligibility is unreliable, the employee should be terminated for failure to produce evidence that he/she is legally eligible for employment. The investigation should also be documented. In addition, all employers should make it clear to recruiters not to provide any illegal workers. This clarification should be put in writing and repeated on a yearly basis.

Documentation to Review

The following is a list of acceptable documents an employee may use to document his/her employment eligibility. When verifying employment eligibility, the employer should examine one document from Table A. In the alternative, examine one document from Table B and one document from Table C, and record the title, number and expiration date, if any, of the documents.

Catherine M. Hobart
404/582-8045
[email protected]
Member: Georgia State Bar Association