In November 2012, the OSC issued technical guidance on how employers should respond to employees who present fraudulent documents as part of the Form I-9 employment eligibility requirements. An employer asked the OSC if it was permitted to reject a document that appeared to be fraudulent. The OSC responded that the employer not only was permitted to reject the document, but also had a legal obligation to do so. Under Form I-9 requirements, an employer must reject any document that does not “reasonably appear to be genuine or to relate to the person presenting it.” Thus, an employer will violate the law if it accepts a document knowing that it is fraudulent.
On a related note, the OSC also advised on the employer’s obligations with respect to hiring or re-hiring the employee who submitted the fraudulent documentation. In this regard, the OSC approved the employer’s policy of making such employees ineligible for employment as long as the policy is consistently enforced. According to the OSC, “consistent application of a dishonesty policy would not constitute a per se violation of the anti-discrimination provisions [of the immigration laws].”