Discharge of 10-year employee for false work permit lawful
http://hr.cch.com/news/employment/122906a.asp
A 10-year employee and known union supporter was lawfully terminated when her employer discovered she had falsified her work permit. Although the employee's support for a co-worker she believed to have been wrongly discharged was protected, the employer showed that it would have terminated her regardless of her protected activity and earlier participation in unfair labor practice proceedings, ruled a 3-2 panel of the National Labor Relations Board. In affirming an administrative law judge, the Board found that nothing in the timing of the discharge raised an inference of unlawful action (Sara Lee dba Int Baking Co and Earthgrains, 2006-07 CCH NLRB ¶17,220).
In January 2004, as part of a regular review of employee work permits scheduled to expire in 90 days, the director of human relations, believing the employee to be from Mexico, questioned her about the discrepancy in her country of origin on her work permit. The questioning occurred the day after the employee indicated she would support a co-worker who she believed had been wrongly discharged. The employee was given eight days to obtain a letter from the Immigration and Naturalization Service resolving the discrepancy. Although she produced a letter from her attorney, when she did not produce a letter from the INS, she was terminated.
The Board agreed with the ALJ that the employee was not discharged for testifying at the Board hearing. Although writing a letter on her co-worker's behalf was protected, the Board also agreed that the employer successfully established that it would have terminated her regardless of this protected action. The error on her work permit was discovered in the regular course of checking for soon-to-expire work permits, the Board noted. Eight days was a sufficient amount of time to obtain counsel to resolve the matter and she did not ask for additional time.
