On January 1, 2014, several immigrant-friendly laws went into effect in California. Our January 2014 immigration alert summarized several of the laws. Under one such law, Assembly Bill No. 263, employers may no longer discharge, discriminate, retaliate, or take any adverse action against an employee for updating or attempting to update personal information unless the change relates to the employee's professional qualifications for the job. This appears to preclude an employer from taking an adverse employment action against an employee who admits that he or she previously provided a fake name, fake or fraudulent Social Security number, or fake or fraudulent Employment Authorization Documentation in connection with Form I-9 completion.
Prudent employers often have policies that subject employees to termination for presenting false documents or lying on a company or government document. It appears that California's new laws may make such policies unenforceable in that state. It remains to be seen, however, whether courts will enforce state law or find that it has been preempted by the overwhelming federal regulation in this area. For example, what if an undocumented employee provides false information in a Form I-9 or in a resume or employment application? Does the California law preclude the employer from disciplining the employee or even terminating him or her under the employer's honesty policies? How does this square with the federal law that may require the employee's termination? This may prove to be a particularly contentious issue in California, where nearly 2.6 million undocumented immigrants may receive work authorization under comprehensive immigration reform.
While federal law is the primary source of immigration law, employers need to remember that there are a growing number of state immigration laws that might apply to their operations.