John Breslin Aug. 16, 2016, 3:16pm


SAN FRANCISCO (Legal Newsline) -- An increasing number of formerly undocumented immigrants are now obtaining legal status, prompting a warning to employers to beware of potentially discriminating against them as job applicants.

The warning comes after the California Department of Corrections and Rehabilitation (CDCR) was successfully sued for rejecting the job application of a man who used a false social security number as a teenager.

A federal court ordered the CDCR to pay more than $1 million in legal fees, expenses and back pay after ruling in favor of Victor Guerrero, who was turned down for a job as a corrections officer in 2012 for lacking moral integrity. 

Guerrero sued for damages, citing Title VII of the Civil Rights Act of 1964, and arguing that, as a Latino, he was subjected to national origin discrimination for requiring him to reveal he used a false social security number.

The U.S. District Court of Northern California ruled in Guerrero’s favor and ordered the payment of $1.1 million in attorneys’ fees, $145,972 in expenses and $140,362 in back pay. An appeal has not yet been filed by the CDCR.

Guerrero entered the U.S. as a child from Mexico. As a teenager, he used a false social security number to seek employment. He eventually became a lawful permanent resident and then a naturalized U.S. citizen, obtaining a valid social security number.

In 2011, Guerrero applied for a job as a corrections officer, passed the written and physical exams, and met all of the other job qualifications. On his application form, Guerrero admitted to previously using a false social security number to seek employment. 

The CDCR rejected him on the grounds he was not suitable to assume the duties and responsibilities of a peace officer, and that he showed a willful disregard of the law and a lack of honesty, integrity and good judgment.

The court ruled that while California law required the CDCR to conduct a background investigation to ensure good moral character, the good moral character hiring policy had a significant disparate impact on Latino applicants like Guerrero. The CDCR failed to apply relevant Equal Opportunity Employment Commission guidelines to the Guerrero’s application, the court ruled.

Employers could face a similar scenario, particularly following the introduction of the Deferred Action for Childhood Arrivals (DACA) program, immigration lawyer Rob Neale told Legal Newsline. Neale practices with the Fisher Phillips law firm.

“The key takeaway is that employers must be extremely careful when they encounter a situation where a candidate or current employee previously used a false social security number because of their unlawful immigration status, but who has since normalized their status,” Neale said.

Neale said employers should seek knowledgeable counsel if they have any doubts.

“Employers must be deliberate and thoughtful in dealing with conflicts between internal good moral character policies, anti-discrimination protections and compliance with federal/state immigration-related laws,” Neale said.

As of March 31, 2015, U.S. Citizenship and Immigration Services (USCIS) had accepted approximately 750,000 initial requests and granted DACA to approximately 665,000 individuals.

The states with the highest numbers of DACA recipients are California, Texas, Illinois, New York and Arizona. This ruling does not mean all individuals that previously used a false social security number are required to disclose this on an application and were turned down for a job have grounds to file a claim.

“No, it is not possible to make that blanket statement,” Neale said. “Each case presents different facts that must be dealt with on a case by case scenario. 

"In this case, the employer, a California state agency, failed to consider relevant factors required by law in deciding not to offer Guerrero the position based solely on good moral character grounds. Had the agency appropriately considered all of the relevant factors as it applied to Mr. Guerrero’s use of a false social security number as a teenager, the decision to not hire him may have been upheld.”  

Neale advises employers to seek legal guidance before making any decisions based on an allegation of using a false social security number.

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