Laws protect against employee identity theft

The Immigration Reform & Control Act of 1986 forbids national origin discrimination in hiring, discharging, recruiting or referring for a fee, or in the case of a citizen or protected individual, because of citizenship status. Protected individuals are temporary residents, lawful permanent residents, citizens or nationals of the United States and persons granted refugee status or asylum.

Specifically, the act includes a mandate against a company requiring selection of only United States citizens.

It also is against the law to hire illegal aliens.

However, it is not uncommon for an individual to claim that he is able to work in the United States when in reality, he has stolen someone else’s identity. Employers with four or more staff members must comply with the statute, and enterprises with more than 15 laborers may not discriminate on the basis of assignment, compensation or other terms and conditions of employment.

Criminal and civil liability exists for violations of the Immigration Reform and Control Act of 1986, which is administered by the Immigration and Nationalization Service of the U.S. Department of Justice.

To verify that a person is eligible to work in the United States, the statute requires the completion and retention of an Employment Eligibility Verification Form, or I-9.

Section 1 must be completed by the employee when he begins work. Section 2 must be filled in by an organizational representative within three business days of the new hire’s start date.

The associate must present original document(s) that establish identity and employment eligibility per the specifications on the I-9. Substantiating documentation should be copied and attached to the I-9, and, although it is not required, it is better to maintain all I-9s in a file that is separate from personnel files. Also, be sure to verify Social Security numbers every year.

If a business completes the I-9 correctly, and the INS discovers that an employee is not legally authorized to work in the United States, the company cannot be charged with a verification violation unless the INS can show that the establishment had knowledge of the unauthorized status.

The Employee Polygraph Protection Act of 1988 makes pre-employment polygraphs illegal. That act is administered by the Wage and Hour Division of the U.S. Department of Labor.

Exemptions to this act are: intelligence and counterintelligence employers; private security services protecting targeted industries; manufacturers; distributors and dispensers of controlled substances; and federal, state and local governments and political subdivisions.

The only time an organization can legally use polygraphs after a person has been hired would be during an investigation of a financial loss or injury through theft, embezzlement or misappropriation. This exception to the act assumes a reasonable suspicion of a particular team member’s guilt. Therefore, prior to hiring a qualified polygraph administrator, be sure to document behavior that supports the reasonable suspicion.

Inappropriate uses of polygraphs can result in civil penalties of up to $10,000 per violation, payment of lost wages and benefits, and a court-mandated promotion or employment reinstatement.

Both the Immigration Reform & Control Act of 1986 and the Employee Polygraph Protection Act of 1988 provide employers with protection from illegal acts committed by staff members.

Be sure to verify compliance and take advantage of these laws.

Lynne Haggerman is president/owner of Haggerman & Associates, a firm providing outplacement, retained search and management consulting/training on human resource issues.