Employers need to be careful not to automatically terminate employees who present new legal documents without reviewing the matter with an attorney and considering all the legal issues.
Last year, a new immigration-related retaliation law was passed in California to, among other things, protect an immigrant from being discriminated against, discharged or retaliated against for updating or attempting to update his or her personal information.
This year, legislation was passed and signed into law to clarify what is meant by “personal information”—specifically adding “name” and “Social Security number.” This amendment was added to Labor Code Section 1024.6 and goes into effect January 1, 2015:
“1024.6. An employer may not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change of name, Social Security number, or federal employment authorization document. An employer’s compliance with this section shall not serve as the basis for a claim of discrimination, including any disparate treatment claim.”
Whereas in the past, employers may have taken the position that an employee who misrepresented key information at the time of hire could be automatically terminated, employers now must exercise caution and seek legal counsel before terminating an employee who updates his or her personal information. In today’s world, employees may make legal changes to their name or Social Security number and may not be terminated for doing so.
As for the Form I-9, if the employee presented original documents that established identity and work authorization at the time of hire and the employer certified that the documents appeared genuine and the employer had no knowledge that an employee was not authorized to work, there is no I-9 violation.
Going forward, if the employee provides new legal documents, the employer would re-verify employment of that employee based on the new documents presented.
As there are penalties that allow an employee to get damages and attorney fees in a civil case, it is important for employers to be aware of this law and not terminate employees for this issue.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.