![]() SHRM Online: What if a worker tells HR that another worker is unauthorized?īuchanan: The employer should not consider a mere tip from another employee to constitute knowledge that an employee is out of status. ![]() If the employer continues to employ this individual, it is a serious violation. On the other hand, if an employee actually provides information to the employer regarding his or her immigration status, HR would be considered to have knowledge. Taking an action after merely hearing that a particular person is unauthorized to be in the United States is a recipe for a discrimination lawsuit, because IRCA does not require employers to make inquiries under these circumstances. An employer that simply suspects an employee is ineligible to work should be extremely careful before terminating that person or even asking for additional documentation, unless the employer has a solid foundation for the belief. SHRM Online: What if an employer knows an employee is not authorized to be employed even though the Form I-9 was properly completed?īuchanan: An employer that knows the employee is not authorized to work, even though everything on the Form I-9 appears valid, is violating the Immigration Reform and Control Act because the employer is considered to have actual knowledge that an employee is not employment eligible. The courts generally have held that such a notification would provide an employer with constructive knowledge of a problem and that the employer would need to reverify. In addition, failing to reverify a Form I-9 requiring reverification usually will be considered constructive knowledge.Ī clearer situation is found when an employer receives a Notice of Suspect Documents from Immigration and Customs Enforcement that an employee has submitted fraudulent documentation. The employer has information that would indicate the person is not authorized to work, such as a labor certification when he or she is claiming to be a U.S.The employer fails to complete or improperly completes the Form I-9.SHRM Online: When is an employer considered to have constructive knowledge of unlawful employment?īuchanan: DHS lists several examples of constructive knowledge in its rules, including when: It is one of the topics covered in The I-9 and E-Verify Handbook (Alan House Publishing, 2017) co-written by Buchanan with attorney Greg Siskind. Immigration attorney Bruce Buchanan discussed with SHRM Online various scenarios related to constructive knowledge of unlawful employment in the context of Form I-9 verification. Department of Homeland Security (DHS) holds employers liable not only when they have actual knowledge that an employee is unauthorized to work, but also when knowledge may be inferred through notice of certain facts that would "lead a person, through the exercise of reasonable care, to know about a certain condition," according to the agency. Having "constructive knowledge" of an employee's unauthorized work status is a serious violation, but defining constructive knowledge can be tricky for HR professionals.
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