Human resources officials are people too . . . as well as employees. Some think that as a worker side employment attorney I am always at odds with human resources officials, but that is not true. Yes, those HR folks are often adverse witnesses in cases involving my clients, but I know firsthand that good human resources officials prevent many potential legal claims and save their employers a significant amount of money in legal fees and future settlements.
But what happens when a good human resources official does his or her job to protect the employer and follow the law, but then gets punished? Well, if you are in arbitration the results may surprise you.
Ramon (we’ll keep his last name out) onboards new hires for his employer. That includes signing an immigration form called an I-9 that says, under penalty of perjury, that a worker is authorized to work in the U.S. It’s a big deal, because if you, Mr/Ms HR worker, signs one of these and you know, or should have known, this worker is not authorized to legally work in the U.S. you can go to jail for committing perjury. Moving on, ol’ Ramon is told about a new hire to be onboarded, but is also told this new hire worked for the company previously under a different name . . . his brother-in-law’s name. Hmm, a worker used a fake name and his cuñado’s social security card and driver’s license to previously get hired. Well ol’ Ramon correctly says I’m not going to onboard this worker and affirm, under penalty of perjury, that this guy is authorized to work in the U.S. I think you know what happens next. Despite no prior discipline, ol’ Ramon is terminated for “performance.” Oh yeah, the “new” guy is hired, or more accurately re-hired, despite the employer having notice that he previously obtained employment fraudulently.
Texas has a law that prohibits employers from terminating a worker for refusing to commit an illegal act. It’s called a Sabine Pilot law. It is a public policy type of law. We don’t want employers to tell workers to break the law, and if they refuse, lose their jobs. Perjury is against the law. Signing an I-9 under penalty of perjury that a worker is authorized to work in the U.S. when you have reasonable grounds to believe that is not true, is… well…. perjury! Terminating ol’ Ramon because he refused to onboard an undocumented worker and sign his I-9 would be violating this Sabine Pilot protection.
Looks like ol’ Ramon’s employer is in trouble. But wait, no, there is an arbitration agreement. This travesty will never see the light of a public courtroom. No jury. No judge. It will go to private arbitration. Well, you can figure out how this will end. Not surprisingly the arbitrator ruled in favor of the employer. Why? Because, according to the arbitrator, ol’ Ramon did not first look at the fake social security card and fake Texas driver’s license of this worker when he decided he would not onboard him. By the way, the driver’s license this worker used was such a bad fake, his signature was typed, the font used on the card was different than what is used by the Texas Department of Public Safety, and it had 9 digits (instead of the standard 8 digit driver’s license number). Despite undisputed evidence that these documents were fake, according to the arbitrator, ol’ Ramon still needed to look at them before refusing to sign the I-9.
Most plaintiff employment attorneys will tell you that arbitration is not fair to workers. Not even close. This is but another example, however, of how arbitrators will search for some reason to rule in favor of an employer and create unreasonable burdens on workers.
End result. Undocumented worker who used fake documents — hired (and worked there until the lawsuit was filed, after which he coincidentally was a no call, no show and disappeared). Employer who knowingly violated immigration laws and engaged in retaliation — not punished. HR worker who did the right thing — lost his job and lost his legal claim.
The battle continues sin fin …