CAI’s Advice and Counsel Team answers several questions from members daily. A recent question the team received was– We had an employee who has worked for us for years come forward with new documents and advise us that he is now legal. What do we do?
In today’s post, Advice and Counsel Team Member Pat Rountree supplies an answer to this workforce-related issue:
If an employee tells you they were illegal but now have legal documentation, you have a choice:
- accept the new documentation and keep the employee if the documentation appears valid; or
- take disciplinary action under your policy if you state that falsification of employment records is grounds for discipline.
There is nothing illegal about keeping the employee if you accepted the original documentation in good faith and it appeared valid, and if the new documentation appears to be valid. If you are using E-Verify, you will find out whether the new information is indeed valid.
The next question you have to ask is, “what is our policy in regards to employee falsification?”
If you have a policy that results in discipline for falsification of records and you treat this situation differently because it is a “good employee,” it begs the question of whether you are being inconsistent with your policy. Also, if you want to terminate the employee and rehire for the same reason, you should review your policy on rehires to see if employees who are terminated for cause for other reasons are allowed to return. Other employees often are aware of these situations and look to see how they are handled by the employer.
Review the situation, your policy and past practice. If your policy does not require you to terminate, verify that the new documents are valid and complete a new I-9 and attach it to the original, along with a memorandum for record describing the actions taken by the employer in regard to the I-9 form.
If you have questions about this issue, please contact a member of CAI’s Advice and Counsel team at 919‑878‑9222 or 336‑668‑7746.