Constructive Knowledge and Employing Illegal Aliens

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As I wrote in another post , Arizona has recently passed a law that makes it a crime to be in Arizona illegally and permits Arizona police to stop an individual if the police has “reasonable suspicion” that the person is in the United States illegally. Arizona also has a law with serious consequences if a business employs illegal aliens and continues to employ them after being caught.

Federal law also makes it unlawful to knowingly hire an individual without valid work authorization. The question then turns to when an employer “knows” that someone is an illegal alien. It is unusual that an individual tells a manager or supervisor that his social security card was bought on the street or that he is without proper work authorization.

An employer can also be deemed to have this knowledge also under a theory called constructive knowledge. Constructive knowledge is when a reasonable person would infer that someone is unauthorized to work in the United States based on the facts and the totality of the circumstances. Constructive knowledge has been found where (1) the I-9  Form was not properly completed, including supporting documentation; (2) the employer has learned from other individuals, media reports or any source of information available to the employer, that the alien is unauthorized to work; or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to introduce an illegal alien into the employer’s workforce. Constructive knowledge was even found in a case where an employer saw a newspaper article stating that ballrooms depend on an illegal alien workforce of dance hostesses. Constructive knowledge cannot be inferred solely on the basis of an individual’s accent or foreign appearance. Nor can it be inferred only from the receipt of a “no-match” letter from the Social Security Administration.

The lesson for all employers? Pay attention to what is going on in your workforce. Train your supervisors and managers to learn what the federal law requires and what can constitute constructive knowledge. Working in a specific industry such as construction or hospitality could constitute an element of constructive knowledge too.


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