By Bruce Buchanan, Siskind Susser

You are Fired.jpgenvironmental_stoneworks.jpg

A federal employment lawsuit filed in Pennsylvania last week has turned up an unusual set of allegations of immigration compliance violations. The Plaintiff, a terminated employee, states in her complaint that she began working for Environmental Stoneworks in 2005 and took on Human Resources duties including the verification of employees’ work eligibility. She alleges that her superiors began pressuring her “intensively” to certify I-9 forms for employees without physically seeing the required documentation; and that an office manager told her to “get creative to get this done” because new employees needed to be on the job site immediately.

Creativity in the employment verification process, according to the Plaintiff, entailed reviewing copies of eligibility documents on a cell phone and executing I-9 forms outside the presence of employees. Rather than get in touch with her creative side, the Plaintiff states in her complaint that she alerted her superiors it would be illegal to sign I-9 forms without “physically reviewing” eligibility documents in the presence of employees.

Regardless of the reason for Plaintiff’s termination, she was correct in her belief that signing I-9 forms without physically reviewing employment eligibility documents would be illegal.

The Office of Chief Administrative Hearing Officer (OCAHO) recently provided some insight on this same issue when it stated:

“The I-9 form does not state that the certifier examined copies of the employee’s documents, it says the certifier examined the documents presented by the above named employee. It is simply impossible for a [certifier] to determine whether a document reasonably relates to an individual when the [certifier] never saw” the original documents. See United States v. Employer Solutions Staffing Group II, LLC, 11 OCAHO no. 1242 (2015). I covered this decision in a previous blog post.

The Takeaway

It is important for a company’s certifier to personally review the originals of the employment eligibility documents. An employer should not email, mail, or fax copies of the documents to another company official to review and certify. This concept is especially important to remember where an employer has multiple facilities and retains the originals at its corporate headquarters.

More about the Miranda v. Environmental Materials, LLC, 3:15-cv-00568 (M.D. Pa.) case can be found here.