The rights of immigrant workers, their authorization to work status and allowing employers to discover social security numbers, driver’s licenses, verifying identity, and arrest or criminal records is becoming more challenging. Courts are struggling with balancing the needs of discovery with the potential “chilling effect” of allowing employers to discover such information.
This is a hot topic, because immigrant workers are often scared and intimidated from pursuing their rights by the threat of deportation. However, unscrupulous immigrant workers, use multiple identities to commit identity fraud, hide previous employment, arrest and criminal records. There are legitimate policy concerns on both sides and determining what is the proper ruling is a struggle for our courts.
Currently, case law permits employers to ask for the authorization to work status, employment, arrest and work records, if back pay, wages or compensation is sought by the employee. However, if no back pay, wages or compensation is sought in the lawsuit, then employers are not allowed to ask for the authorization to work status. Often, courts will prevent employers from getting personal identifiers, social security and driver’s license numbers.
In some instances, courts will permit employers to obtain arrest and/or criminal records, but the law is in a state of flux. Consulting an employment law specialist can aid employees protect their rights and assist employers implement proper policies. In the event of a lawsuit, an employment law specialist can aid in navigating through the challenging discovery process.
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