I-9 Woes

The Immigration and Control Act of 1986 (IRCA) legally mandates that all US employers verify the employment eligibility status of newly-hired employees. Under IRCA, all employees, citizens, and non-citizens hired after November 6, 1986 must complete a Form I-9 at the time of hire. Now, if the employee was hired PRIOR to November 6, 1986 and has been continuously employed by you, they won’t need one. (Note that independent contractors are not subject to the I-9 requirements. However, if you know that the individual lacks work authorization, retaining the contractor will constitute a violation of IRCA.)

There seems to be a lot of confusion surrounding I-9 compliance. Here are some general questions I seem to hear a lot:

1. Is there a timing issue associated with the completion of the I-9? Yes. The form must be completed for each employee within three days of the start of employment. Make sure the employee signs the form. Once the employee has done so, s/he becomes responsible for the accuracy of the information provided.

2. May I copy documents presented as I-9 supporting documentation? The law doesn’t require, nor prohibit copying documents for this purpose. However, if photocopies are made, they must be made for all new hires.

3. What do you do if you have a missing form or documentation? Immediately request that the employee complete a new form and submit supporting documentation. Do NOT post date the document! When an employee cannot provide acceptable documentation, you become aware at that time of the individual’s ineligibility to work. You may be subject to penalties for ‘knowingly’ continuing to employ a worker under such circumstances.

4. Can you fire an employee who fails to produce the required document(s) within three business days? Yes. However, ensure you apply this practice uniformly to ALL employees. If an employee provides a receipt for a replacement document, such as a Social Security Card, they must produce that document within 90 days of the date employment begins.

5. Are there penalties? Yes. If an employer knowingly hires and/or continues to employ unauthorized workers, the penalties can range from $250 to $11,000 per violation. For paperwork that is improperly completed, retained, etc., the fines can range from $100 to $1,100 per individual I-9.

A year ago Abercrombie & Fitch (who seem to have a lot of personnel/HR issues) was fined $1,047,110 for their “electronic I-9 deficiencies.” These fines are from an audit that A&F underwent, and failed, in November 2008 for their stores located in Michigan. Disney Corporation was fined over a quarter of a million dollars for I-9 paperwork violations. Denny's Restaurants Inc. paid fines and retrained managers after the U.S. Department of Justice's Office of Special Counsel conducted an extensive 18 month investigation. The investigation was initiated due to reports that managers at Denny's were requesting specific types of documents from potential employees for I-9 forms. (Remember, employers can NOT specify which documents employees present to establish identity and employment authorization.)

A word of advice, audit your I-9s. Ensure your compliance!