On August 26, 2012, Ramiro Garcia was racing to work at Bonefish Grill in Leawood, Kansas when he was stopped for speeding. For many people, this would have been an inconvenience but, for Garcia, this was serious. An undocumented immigrant, working under an assumed Social Security Number, Garcia knew he faced immigration consequences, but he likely didn’t expect to be prosecuted for identity theft. (The details of the underlying state case make for interesting reading.)
The question before the Supreme Court of the United States is whether states can use information reported on the Form I-9, Employment Eligibility Verification (“Form I-9”) to prosecute identity theft cases and the consequences of that decision could be far-reaching.
The legal issues are complicated and the Supreme Court of the United States Blog does an excellent job laying them out in an October 9, 2019 piece. Guessing how U.S. Supreme Court Justices will rule and what their nuanced decisions will be is often more sport for Supreme Court watchers than helpful analysis for employers and their employees. Instead, we are going to focus on what the underlying case means for us right now, during this enforcement-minded administration.
On the Green and Spiegel U.S. Blog, we have discussed a number of worksite enforcement matters. Through the summer of 2019, we have been drawing a broad picture of seemingly related enforcement mechanisms: Social Security Administration No Match Letters, Form I-9 Audits, FDNS Inspections and Investigations, HSI Investigations, frequent Requests for Evidence, and more frequent Notices of Intent to Deny and Denials of employment-based visas. Collectively, these government programs suggest an Administration focus on eliminating perceived “safe havens” for unauthorized workers. Stated differently, they appear to work in tandem, making working and living in the United States difficult for the undocumented immigrant.
“Squeezing” undocumented immigrants through regulatory actions of the federal government affect employers as well. Some employers rely, knowingly or not, upon unauthorized workers and it is often the Social Security Number (SSN) which acts as the mechanism by which those employers meet their obligations under state and federal law. The false or stolen SSN is often the mechanism by which employers pay unauthorized workers, pay taxes on their wages, and meet their other legal responsibilities.
Kansas did not use data from the Form I-9; they concede that that would be unlawful. Instead, the state believes that it has the authority to use information in its tax records. Garcia printed an assumed SSN on his Form I-9 and that information made its way into Kansas tax records through Garcia’s employer. If the SCOTUS concludes that Kansas was allowed to use that information then states will be free to “harvest” data in their records to move against undocumented immigrants. As we have seen with the SSA No Match Letters, discrepancies between SSNs and biographic data can point to unauthorized use of an SSN and identity theft. Kansas says it has the authority to use such data for precisely this purpose and other states will likely follow suit if the SCOTUS OKs it.
These are complicated matters which can invite liabilities if not handled correctly. Regardless of the SCOTUS decision in Kansas v. Garcia, there are effective strategies to minimize risks like reviewing policies, procedures, and contracts to make sure they address current legal realities. Proper vetting of employment applicants and effective administration mechanisms can reduce liabilities, support authorized workers, and avoid discrimination claims.