An employee presents your HR staff person with a changed name and a new social security number. You have strong suspicions that the information given you when the employee was hired was false, or that the employee did not previously have the legal right to work in this country, or perhaps even to be in the country.

DO NOT decide to terminate the employee to avoid any problems.

At least not without a careful further investigation. Employers should not automatically terminate employees who present new legal documents without first reviewing the matter with an attorney who will consider all the legal issues raised by new documents.

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 went 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.”

In the past employers could take the position that an employee who misrepresented key information at the time of hire could be automatically terminated. Now employers must exercise caution and seek legal counsel before termination of an employee who updates his or her personal information. 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 should re-verify employment of that employee based on the new documents. There are now penalties that permit an employee to recover damages and attorney fees. It is important for employers to be aware of this law and not terminate employees for this issue, unless they are completely sure they comply with applicable law when doing so.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.