Last week, the Supreme Court of the United States decided Kansas vs. Garcia, ruling that the State of Kansas could prosecute individuals for identity theft under Kansas law when they used other persons’ Social Security numbers to gain employment. While the case involved criminal law issues, read on to see the practical impact this could have on Kansas employers.
The controversy arose when three undocumented immigrants without Social Security cards were charged with and convicted of identity theft after they used another person’s Social Security number on a Form I-9 to be hired at a restaurant. The three immigrants also used the false Social Security numbers on other documents, including federal and state tax withholding forms.
In 2017, the Kansas Supreme Court ruled that the State of Kansas is not permitted to base prosecutions on information contained on an I-9. But on March 4, 2020, the United States Supreme Court reversed. All nine justices agreed that the Immigration Reform and Control Act (IRCA) does not expressly preempt states from prosecuting individuals for identity theft and fraud. A five-justice majority also agreed that IRCA does not impliedly preempt states from applying their state identity theft and fraud statutes. The majority noted that the State of Kansas’s prosecutions were based on the false Social Security numbers the immigrants provided in tax-withholding forms, rather than their I-9s.
So what does this decision mean for employers? The case clears the way for employees to be prosecuted for state crimes when they provide false information on federal and state tax withholding forms, even when they submit the same false information on their I-9s as part of the employment process. This decision may result in law enforcement relying more on employer records as part of identity theft prosecutions. As a result, Kansas employers could see more subpoenas from law enforcement officials seeking employee records.
Employers may also become exposed to an increased risk of liability related to employee work authorization. While IRCA does not allow states to punish employers for errors on their workers’ I-9s, this may not be the end of the story for employers. Remember that employers are required to ensure employees are authorized to work in the United States. Any information that would indicate an employee has provided false information to prove this work authorization can expose an employer to being deemed to have knowledge that the employee was not authorized to work in the United States. Such a finding can result in the imposition of civil and criminal sanctions against an employer, depending on the circumstances. So if you receive inquiries or subpoenas related to these types of records, you should seek legal counsel knowledgeable about I-9s and work authorization issues before responding.