Monday June 9, 2014
Employers are often in a delicate spot when hiring immigrant workers.
They can face federal fines if they knowingly hire undocumented immigrants. On the other hand, they can also face penalties if they go too far in challenging an employee’s migratory status.
All the details have yet to come out, but the tricky balance seems to be at the heart of a lawsuit filed last month by the former human resources manager at Crane Composites Inc. in Goshen. Taimi Fernandez-Guillot, the employee, charges she was improperly fired last May from the company after refusing directives related to review of documents submitted by workers related to their migratory status.
- Scroll down to see the original lawsuit and look here for the initial Elkhart Truth article on the case.
As Fernandez-Guillot puts it in the federal lawsuit, she refused a directive from a higher up to accept, seemingly without question, the documents submitted by employees to prove their legal work status here, per requirements in filling out the federal Form I-9. Employers are required to have a Form I-9 for each worker, attesting to their legal work status.
"...(W)hatever, they give you...accept then sign the I-9...don’t inspect...don’t do anything...you are not ICE/INS..just sign,” Robert Burton, a divisional human resources vice president allegedly told her, according to the suit.
ICE is U.S. Immigration and Customs Enforcement, the federal U.S. Department of Homeland Security agency tasked with enforcing U.S. immigration law. INS is the former name of the agency that used to oversee immigration law, the U.S. Immigration and Naturalization Service.
That order was apparently difficult to swallow for Fernandez-Guillot. After being tipped off by a fired worker who used false identification to get work, she conducted a ”verification audit.” That’s when she uncovered an “extensive” number of undocumented immigrants at the firm, the lawsuit says.
The lawsuit doesn’t specify how Fernandez-Guillot determined who was and wasn’t an undocumented immigrant.
’REASONABLY APPEAR TO BE GENUINE’
Crane Composites has yet to answer the lawsuit, filed May 19 in U.S. District Court in South Bend, five days after Fernandez-Guillot was fired.
But Felipe Merino, an immigration attorney from Goshen, noted that federal law gives limited leeway to human resource officials to question paperwork put forth by employees. Per Form I-9 requirements, workers must show such documentation as passports, birth certificates, driver’s licenses and Social Security cards to prove their eligibility to work in the United States.
"They’re in no way trained to verify the authenticity of documents,“ said Merino. Indeed, an overzealous human resource official who rejects legitimate documents — suspicious, say, because an employee speaks poor English — can open a company to an anti-discrimination claim.
The Form I-9 instructions, in bureaucratic speak, spell it out: “It is illegal to discriminate against any work-authorized individual in hiring, discharge, recruitment or referral for a fee, or in the employment eligibility verification ... process based on that individual’s citizenship status, immigration status or national origin.”
That’s not necessarily to say each and every document has to be unquestioningly accepted. U.S. Citizenship and Immigration Services offers some guidelines.
“You are not required to be document expert,” USCIS says. “You must accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if your new employee provides a document that does not reasonably appear to be genuine and relate to them, you must reject that document and ask for other documents that satisfy the requirements of Form I-9.”
Ex-Crane Composites worker's federal lawsuit.