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Human Resources: employee not authorized to work in the US?

By August 20, 2012February 19th, 2015No Comments

OLYMPUS DIGITAL CAMERAQuestion: Human Resources is responsible to assure that all associates are legal residents.  We recently become aware that a few of our long-time employees who were hired prior to using E-verify are not legal residents of the US.

What are our legal obligations regarding their employment? Do we need to terminate them or are we allowed to continue employing them?

Answer: If the employer at any time during an employee’s employment discovers that an employee is not authorized to work legally in the United States, employment must be terminated immediately. The employer can face significant liability if it knowingly continues to employ a worker who lacks legal authorization to work in this country, and in this regard we do not advise that the employer merely “take the employee off the schedule,” rather, the employment relationship should be terminated. The employer must pay the employee all wages due though, and we recommend that you consult with an accountant or tax specialist for guidance in properly reporting the final wages to the IRS and state or local revenue authorities in view of the fact that the social security number is not assigned to the employee in question.

If the subject individual later seeks to become reemployed with appropriate and valid documentation evidencing his authorization to work in the US, it is up to the employer to determine whether it wishes to rehire any individual who previously obtained employment fraudulently and under false pretenses, if that was the case with any of the employees you mention.

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