Responsible employers do not knowingly hire an unauthorized worker or accept false documents from potential or current employees. However, not every employer is an expert in the area of counterfeited documents so sometimes false documents slip past.
The Immigration Reform and Control Act (IRCA) requires employers to verify the identity and employment eligibility of their employees. The Form I-9 is the means of documenting employment verification, including capturing the employee’s Social Security number (SSN). So what happens when an employee approaches an employer with new identity or employment eligibility information?
New Social Security Number
When handed a new SSN by a current employee that includes different information than his or her current record(s) indicate, the first question naturally asked is, "Why did your number change?" Please note that there are several situations in which the Social Security Administration (SSA) will change someone’s legitimate SSN, including:
- witness protection;
- domestic violence issues;
- the correction of an SSA error in which it assigned the same number to multiple individuals, or
- a case of identity theft.
However, the most common reason to report a changed SSN to an employer is because the person has only recently become legally authorized to work and the previous SSN was not legitimate. Therefore, if you become aware that the SSN you have previously associated with this employee was not that person’s legally assigned SSN, then you have some decisions to make as this could be considered "falsification of business records" or "dishonesty" in violation of company policies.
Once an employer finds out that an employee has been using a fraudulent SSN, it is not required that the employee be terminated, however, some employers will choose to do so, citing company policy regarding dishonesty in the workplace. Other employers may choose not to take that approach, especially if the employee has a good working record and is coming forward to set the record straight. Instead, the employer may choose to issue a last chance or final warning on dishonesty as disciplinary action. In either situation, the employer should contact SSA and submit the correct W-2c and W-3c IRS forms in order to correct wages attributed to the wrong SSN. Also, the employer should examine the new documentation thoroughly. As mentioned above, employers aren't required to be experts in the area, but you don’t want to be fooled twice!
If you decide to retain the employee, personnel records need to be corrected, including payroll records and any benefits and beneficiary information. The employee must also complete a new Form I-9. The form should not be backdated; however, a note should accompany the form explaining the situation.
Since there are many complications that can arise in regard to immigration status and right to work, employers should proceed with caution when evaluating termination or termination/rehire, and MRA recommends seeking legal guidance in these situations.
Source: Michael Hyatt, HR Government Affairs Director, MRA - The Management Association