The Ninth Circuit Court of Appeals issued a new opinion in which it clarified a portion of the Immigration Reform and Control Act (IRCA). The IRCA requires an employer not to “continue to employ” a person once the employer learns the person is not authorized to work in the U.S. The court was asked to decide if an employer violated the IRCA by placing an employee on unpaid leave or suspension while the employee attempts to clarify their immigration status. The Ninth Circuit held that as long as an employee does not perform a service or labor for the employer, the IRCA is not violated by placing an employee on unpaid leave or suspension while they attempt to remedy their immigration status.
The Bottom Line: It is understandable that employers may want to look the other way while an employee attempts to remedy their immigration status. Unfortunately, any employer that chooses to so do, does so at their own peril. Employers who learn that a problem exists with an employee’s immigration status must act immediately and either terminate employment, suspend or place the employee on unpaid leave. Under no circumstances should an employer allow an employee to continue to work once it comes to light that an immigration status problem exists.