Caution: Beware Overly Zealous Immigration Enforcement

Employers concerned with potential immigration raids and fines should beware going too far in their efforts to terminate undocumented workers. As one Kansas employer recently learned, overzealous enforcement may pave the way to liability for back pay, compensatory damages and attorneys fees for unlawful discrimination on the basis of race and national origin.

The employer, Elite Logistics, Inc., received a tip that it might be raided by federal authorities for employing illegal immigrants. Elite hired a background search firm to check its employees social security account numbers.  Mr. Zamora, a long term permanent resident, was identified as a possible illegal immigrant based on the fact that his social security account number had been used by another person in California. Elite confronted Zamora and demanded that he obtain confirmation from the Social Security Administration ("SSA") within 10 days that his account number was valid or face termination. Zamora didn’t go to SSA, but he was naturalized in the interim and offered to produce his U.S. citizenship certificate when he reported 10 days later. Elite’s manager refused even to examine the document when offered, made a racial slur about Zamora, and terminated him based on the erroneous belief that his social security account number was invalid.

Zamora sued for discrimination based on race and national origin under Title VII of the Civil Rights Act of 1964. Elite prevailed at the summary judgment stage of the case in federal district court, successfully arguing that its mistaken belief that Zamora was undocumented constituted a legitimate, non-discriminatory reason for the termination. Zamora appealed, asserting that summary judgment had been granted erroneously inasmuch as factual disputes remained regarding whether Elite’s stated reason for Zamora’s termination was a pretext for unlawful discrimination: i.e., Elite’s utter failure to investigate the bona fides of Zamora’s citizenship claim, and the use of a racial epithet at the termination meeting which a reasonable jury could interpret as evidence of unlawful racial motive. The Tenth Circuit sided with Zamora in the appeal, holding that the district court erred in failing to submit the pretext issue to a jury for the reasons Zamora cited. The case has now been returned to the district court, where a jury will determine if Elite is liable for discriminating against Mr. Zamora, and if so, what relief he is entitled to receive.

The moral in this tale is that employers must exercise reasonable care in attempting to comply with workplace immigration rules. The Department of Homeland Security ("DHS") recently published a proposed rule announcing that employers must take prompt action upon receipt of SSA "no-match" letters or be at risk of liability for employers sanctions violations. The proposed rule (which will be covered in another update) articulates specific procedures to be followed with respect to employees identified in a SSA "no-match" notice. Ironically, if those rules had been applied in Mr. Zamora’s situation, he would not have been fired because his naturalization certificate provided sufficient proof of identity and work eligibility for I-9 purposes.