A potential re-hire has admitted to providing fake IDs. Who do we report this to?

Question:

We have an employee who resigned last year and has returned to reapply. When he provided his driver’s license and ss card they had a completely different name on them. The Director at the region questioned the person and he admitted that his previous documents provided to us for employment did not belong to him. When we had this issue come up with another employee we contacted the police who didn’t understand why we called them. So who do we report this to? Is it in our best interest to not hire him knowing that he has committed fraud by admitting he provided documentation that belonged to someone else?

Answer:

Thanks for the question.  This is a trickier situation than you might imagine.

For example, if you look at this situation through the lens of 1-9, you will quickly realize that the interplay between I-9 compliance and anti-discrimination regulations presents a major dilemma for employers. Generally, employers are required to accept facially-valid documents from the I-9 acceptable documents list without further inquiry. However, there are certain situations in which the employer would have a duty to inquire further about an employee’s status under the government’s “constructive knowledge” standards in order to avoid a charge of knowingly employing an unauthorized worker.

Believe it or not, on January 8, 2015, the Department of Justice Office of Special Counsel (“OSC”), issued a Technical Assistance Letter discussing this situation, which may be found here: https://www.aila.org/infonet/osc-tal-on-discrimination-concerns. The letter provides general guidelines regarding discrimination concerns when an employee presents new work authorization documents and explains that the documents originally presented were not genuine.

In that case, the OSC referred the employer to the Handbook for Employers, Guidance for Completing Form I-9. According to the book, in this situation the recommended course of action would be to complete a new Form I-9 and to include a written explanation. The handbook also states that the I-9 rules do not require termination of employment, so long as the presented new work authorization is facially-valid.

On the other hand, should you reject the individual’s application and deny them employment, the January 8 letter provides that an employee terminated under similar circumstances could allege citizenship status discrimination, national origin discrimination, or unfair documentary practices. The letter clarifies that whether or not such termination would violate the anti-discrimination provisions depends on the specific facts presented. For example, an employer with a consistently followed policy of terminating individuals for providing false information during the hiring process may have a legitimate nondiscriminatory reason for the termination.

As such, if you have dealt with this situation before, it’s probably best to follow the same course of action as last time (while of course considering that each case is different and the details for these situations are critical).  In any case, this appears to be a reasonably complex situation, and I advise that you work with knowledgeable local employment counsel.