Employers are sometimes forced to walk a fine line between I-9 compliance and national origin discrimination. One situation that poses risks on both sides of that line occurs when an employee tells you that they have a “new” Social Security number. If you continue to employ that person, will you be “knowingly” employing an unauthorized worker—and thus subject to fines and even criminal penalties? On the other hand, if you terminate the employee, will you be liable for “discrimination” based on national origin? It’s a veritable Catch-22, right?
Employers often believe that they can avoid the issue altogether by simply terminating the employee for “falsifying” onboarding documents. However, this may not be the right approach. First, there are, of course, legitimate reasons for a Social Security number change—which means that nothing was falsified. Second, unless there is a consistently-enforced policy and practice in place, you risk a discrimination claim. Third, even with a consistently-enforced policy, such a practice could create a disparate impact on a protected class. Finally, if you start asking too many questions about why the Social Security number was incorrect in the first place, you run the risk of “knowing” something about the employee’s employment authorization that you may not want to know.
As an alternative, employers should take a look at Section 5.3 of the M-274 Handbook for Employers, the go-to resource for I-9 compliance:
You may encounter situations other than a legal change of name where an employee informs you (or you have reason to believe) that their identity is different from that previously used to complete the Form I-9. For example, an employee may have been working under a false identity, has subsequently obtained work authorization in their true identity, and wishes to regularize their employment records. In that case you should complete a new Form I-9. Write the original hire date in Section 2 and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation.
In cases where an employee has worked for you using a false identity but is currently authorized to work, the Form I-9 rules do not require termination of employment.
There is also a nice step-by-step on USCIS’s “I-9 Central” webpage (near the bottom) that similarly details what to do. In short, due to the exposure presented, employers should consider simply following the guidance from Uncle Sam.
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