Sure, you can fire an employee if you discover that he or she is unauthorized to work, but the legal costs that may follow can be exorbitant, so why take chances with lax processes when hiring someone?
Recently, an individual employed by Wisconsin company Burlington Graphic Systems took a week off from work for medical reasons. Karen Alvarez took the time off for surgery, likely expecting to return to work without a hitch. Returning to work, she learned she was fired for unexcused absences. Following her termination, Alvarez filed a complaint with the Wisconsin Department of Workforce Development against Burlington Graphic Systems, claiming that her firing was a violation of the state's Family And Medical Leave Act.
The Wisconsin FMLA act protects the rights of employees under a number of medical circumstances. The legislation requires that all employers, with 50 or more permanent employees, must allow employees of either sex up to six (6) weeks of leave in a calendar year for the birth or adoption of a child, up to two (2) weeks of leave in a calendar year for the care of a child, spouse, parent, domestic partner, or parent of a domestic partner with a serious health condition, and up to two (2) weeks of leave in a calendar year for the employee's own serious health condition.
The state's workforce development department picked up the complaint, and scheduled a hearing before an Administrative Law Judge for Alvarez to make her case. Before the hearing took place, Burlington
"The company, as any responsible organization should, asked that Alvarez complete a new Form I-9 before being reinstated to the firm."
Graphic Systems rehired Alvarez. The company requested that she complete a new Form I-9 before reinstating her employment. However, Alvarez could not produce the documents necessary for the completion of the Form I-9, and was subsequently terminated.
Burlington Graphic Systems' argument for its right to terminate
This case really set legal wheels in motion. Court cases can be costly and time consuming, and the circumstances surrounding Burlington Graphic Systems' case were no exception. An Administrative Law Judge ruled in favor of Alvarez, awarding her $8,868.96 in attorney's fees, citing Burlington’s violation of Wisconsin FMLA provisions. However, the Administrative Law Judge declined to award back-pay, due to the fact that she was not authorized to work in the U.S.
Burlington Graphic Systems disagreed with the Judge’s decision, and appealed, stating that it should not be punished for firing someone who was ineligible to work in the U.S. in the first place. The company argued that if an employee doesn’t have the right to be employed when starting work, he or she certainly doesn’t have the right to remain employed, when returning from a medical leave.
The Wisconsin Appeals Court upheld the Administrative Law Judge’s decision, finding in favor of Alvarez. The court explained that the fact that Alvarez did not have valid work authorization did not preclude Burlington Graphic Systems’ requirement to comply with Wisconsin employment law.
How lawsuits such as Alvarez' can cost organizations, and how to avoid them
The costs association with a court case such as this can far exceed back-pay or attorney's fees that a judge may award to a terminated employee. Experts, such as Jon Hyman, a partner in the labor and employment group of Kohrman Jackson & Krantz, peg the cost of a company defending itself in the case of an employment lawsuit at around $250,000. Often, employers choose to retain an employee rather than face the costs of a lawsuit, but when the individual isn't authorized to work in the U.S., the right choice becomes a little less apparent.
This is why it is important to get the hiring process right the first time, rather than dealing with the costly repercussions of hiring an unauthorized worker later on. Tools such as electronic Form I-9 solutions and federal background check programs E-Verify can help employers ensure that they are consistently hiring in a compliant manner.
Features that safeguard against forgetting documents, entering incorrect data, and missing mandatory fields, help hiring managers ensure their companies remain compliant. Digital Form I-9 systems, in conjunction with E-Verify, which effectively determines whether or not persons are eligible to work in the U.S., can help organizations avoid costly government penalties as well as burdensome court cases.
Sure, you can fire an employee if you find out he or she is unauthorized to work, but the legal costs that may follow can be exorbitant, so why take chances with lax processes when hiring anyone?