If you have employees and you read this headline and are saying to yourself, ‘what is an I-9?’, that likely means one of two things: (a) you don’t know/remember the name of the form you complete for new employees which documents their authorization to work in the U.S., or (b) you are not complying with the federal law requiring that such things be documented. Hopefully, it’s the former; but if not, don’t fret, you can work to fix the problem. The Form I-9 simply verifies and documents two things: (1) an employee’s identity, and (2) the employee’s authorization to work in the U.S. Read on to avoid the common mistakes employers often make when it comes to completing I-9 forms for their employees.
Mistake #1: Not completing the form within three business days of the employee’s first day of work.
Why this is important: Federal law requires that employers complete a form I-9 for all employees within three business days of the employee’s first day of work, and the employee must complete his or her portion on day one of employment. This includes full-time, part-time, temporary, students… everyone. As indicated right on the instructions, failure to comply could result in fines that will rack up per day until the violation is corrected. You may give the employee the document list (explained more in Mistake #2) in advance so they can be prepared on their first day to complete the form. You can also complete the form in advance of the employee starting work, as long as the job position has been offered and accepted.
Mistake #2: Telling the employee what specific documents/forms of identification they must bring/show you. (Hint: They do not have to have a driver’s license and SS card!)
Why this is important: Employees who are not US-born may not have the same documents as those who are, but that doesn’t necessarily make them any less eligible to work here. Telling the employee “bring in a driver’s license and social security card” could make the employee feel that if she does not have both of those, she will be denied employment which may constitute discrimination. There are a number of documents an employee may present, as seen on the List of Acceptable Documents on page 9 of the Form I-9, which can be found here. The law requires that the employee be allowed to choose which document(s) to present from the list, so employers should show or give a copy of the list to the employee.
Mistake #3: Taking down the employee’s social security number without viewing the card itself.
Why this is important: The law requires the employer (or the employer’s representative) lay eyes on the original documents and verify that they appear authentic. Doing so ensures that, if a document turns out to be fake, you are not liable for accepting a fake document, if you reasonably believed it to be authentic, based on your visual examination of it. You may, but are not required to, make and retain photocopies of the employee’s documents you examine.
Mistake #4: Letting an employee continue to work for you even though the employee has not provided the required documents.
Why this is important: Allowing an employee to work for you who has not provided the required proof of eligibility to work in the U.S. is a violation of federal law – by you both. So, the employer can protect itself by terminating anyone who has not provided the required documents as long as you have informed the employee of her responsibility to do so, including giving them a copy of the documents list, and have given them opportunity to comply.
But, you might ask, how will the federal government know if I am making any of the above mistakes, since I keep the forms in my files and do not send them in? The U.S. Department of Homeland Security (DHS) can conduct an audit at any time, in which they would dig into your files and require you to show compliance. If they find any violations, they can and often will issue fines and require that you take certain steps to avoid problems in the future.
While this article addresses common mistakes, it is not a comprehensive outline of how to handle I-9 forms. The law imposes additional requirements relating to completing and retaining the forms. Before completing I-9 forms for employees, read all instructions provided with the form carefully. If you have questions about your obligations as an employer, contact Attorneys Jessica M. Kramer or Leslie Elkins at Kramer, Elkins, & Watt, LLC for help.