| A federal district court judge from the Northern District | | | | status is irrelevant to the issue of liability. No inquiry is |
| of California ruled that the government cannot use | | | | permitted into a person's immigration status except |
| mismatched Social Security data to root out illegal | | | | when necessary to comply with federal immigration |
| immigrants from the workforce, declaring that such | | | | law. |
| enforcement actions would do 'irreparable harm to | | | | All employers are required to have an employee |
| innocent workers and employers." Judge Breyer issued | | | | execute an INS I-9 Employment Eligibility Verification |
| a preliminary injunction temporarily preventing the | | | | and give documents verifying his or her legality to |
| Department of Homeland Security from beginning a | | | | work. An employer complies with the verification |
| program to punish companies that do not clear up | | | | requirements for document examination if the |
| discrepancies between their workers' names and | | | | documents reasonably appear on their face to be |
| Social Security numbers within 90 days after receiving | | | | genuine. An employer is not required to further |
| a letter from Social Security advising them of the | | | | investigate the authenticity of documents that meet |
| discrepancy. | | | | that criterion. An employer is liable for accepting |
| What does this mean for employers? What should | | | | documents if the employer knows or has reason to |
| they do if they are faced with an employee's name | | | | know that the documents are false. |
| that does not match the Social Security Number? | | | | In summary, if the employer knew or should have |
| Employers have to tread lightly in California in | | | | known, because of the availability of certain |
| summarily terminating employees because of | | | | information, that the applicant alien held an unauthorized |
| discrepancies in Social Security numbers. Mismatched | | | | status and had no right to work, the employer will be |
| Social Security data could be evidence that someone | | | | held liable. |
| is unauthorized to work, or it could also be caused by | | | | The new Homeland Security provision basically takes |
| a typo or name change. If an Employer takes the | | | | the employer's duty further than just asking for |
| position that an employee with a mismatched Social | | | | verification to work in the United States, but makes an |
| Security number is unauthorized to work and therefore | | | | employer an INS agent by requiring the employer to |
| should be terminated, the employer is looking for | | | | investigate the validity of documents presented for |
| trouble. | | | | verification. |
| First, the new Homeland Security provisions place a | | | | Will employers begin to target certain ethnic and racial |
| burden on employers to comply with a new 90-day | | | | groups and systematically not hire them, because they |
| time frame for resolving mismatches. The scope of | | | | are known by the employer as a group that receives |
| the rule would have staggering effects on employers, | | | | mismatched social security letters? Even if a mismatch |
| prompting them to develop costly personnel systems | | | | letter is sent, this does not give the employer the right |
| and fire workers who may be legally employed, thus | | | | to terminate. If an employer receives a mismatch letter, |
| exposing them to liability for wrongful termination. The | | | | the employer should re-verify work authorization by |
| liability exposure for employers summarily terminating | | | | allowing the employee another opportunity to present |
| employees with mismatched numbers could be | | | | acceptable documentation and complete a new I-9. If |
| staggering. | | | | the employee is unable to produce acceptable |
| Under California law all individuals who have applied for | | | | documentation, then an employer may be faced with |
| employment or who are or who have been employed | | | | termination of the employee's employment to avoid |
| in the State are entitled to all protections, rights, and | | | | penalties for 'knowingly continuing to employ' an |
| remedies available under state laws, except any | | | | unauthorized worker. However, if the employee |
| reinstatement remedy prohibited by federal law, | | | | presents the same documentation for a new I-9 and |
| regardless of immigration status. The law further | | | | maintains the documentation he or she originally |
| provides that for the purposes of enforcing state | | | | provided to verify the first I-9 is valid, an employer is still |
| employment and civil rights laws, a person's immigration | | | | taking a substantial risk in terminating. |