What Obama's immigration actions could mean for Bham businesses

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Doug Kauffman is a partner in Balch & Bingham LLP’s labor and employment section.

Antrenise Cole

Reporter- Birmingham Business Journal

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President Barack Obama's recent executive order on immigration, which shields up to 5 million people who are in the country illegally from deportation, could bring challenges for businesses in Birmingham and across Alabama.

Doug Kauffman, partner in Balch & Bingham LLP's labor and employment section, offers some advice to help employers manage some of the issues they could face with existing or former employees.

Kauffman, who has extensive experience in immigration law, said if an employer learns that an existing employee has filed a petition for work authorization, the employee should be terminated immediately because the employer cannot, under the law, have an unauthorized worker on staff.

Another potential issue Kauffman mentioned was if an existing employee presents a recently acquired Employment Authorization Document after attesting at the time of being hired to being a U.S. citizen or lawful permanent resident on his I-9 form.

Kauffman said this situation is tricky because the employee is now authorized to work in the U.S. but presented false documents when completing the I-9 form.

He said if the employer has a written honesty policy that prohibits the submission of false information, consistent disciplinary or termination in response to violations may allow the employer to address the past documentation fraud. However, if the employer has not been consistent in its approach to other types of violations, he said adverse action against the employee may draw the attention of the Office of Special Counsel, which investigates discrimination.

Kauffman said if a former employee, who was terminated for not having work authorization, seeks reemployment as a result of a new work authorization status, the employer may evaluate the job application in the same way as for any other employee.

Antrenise Cole covers banking, finance, small business lending, venture capital, accounting and law for the Birmingham Business Journal. Click here to follow her on Twitter.