Compliance Check-Up: The New Form I-9

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Although the Form I-9 has been around since 1986, violations of the I-9 rules continue to be among the most popular Wage & Hour violations. Since the Department of Homeland Security announced a revised form just this week, it’s a good time to review the rules.

An employer must complete a Form I-9 for each new employee hired in the U.S. The form requires the employer to verify and witness documents that show proof of the employee’s authorization to work in the U.S.

While only two pages of the form will need to be completed, the entire Form I-9 is nine pages, including very detailed instructions.

The Form I-9 is not submitted to a governmental agency. Rather, it is retained by the employer for potential review by various U.S. government agencies. Most commonly, a DOL Wage and Hour audit will trigger a request to review an employer’s I-9’s on file. An employer will need to show a valid form for every current employee, every employee hired in the past three years, and every employee terminated in the past year.

Timing is important. Section one of the form must be completed after the employee has accepted a job offer but no later than the employee’s first day of work. Section two must be completed no later than three days after the employee’s first day of work.

If you haven’t met these timing deadlines, don’t despair and don’t backdate a new Form I-9. A good faith effort to comply will be relevant, but backdating is considered fraudulent and subject to criminal prosecution.

Because the Form I-9 will likely include personal, protected data like the employee’s Social Security number, it is incumbent on the employer to have a secure method of storage that protects employees from identify theft. That’s a topic for another day.

There are probably two factors most responsible for I-9 violations —

1) The “kept-on-file” nature of the form. An affirmative requirement to submit the form when new employees are hired might raise awareness of the I-9 requirement. On the other hand, it would undoubtedly create other challenges.

2) The perception by employers that they are “safe” as long as they’re not hiring illegal aliens. This couldn’t be further from the truth. Form I-9 violations have nothing to do with whether your employees are “legal” or not. The requirement of a completed form is, in and of itself, a legal obligation, subject to both criminal and civil penalties.

The new form is to be used, effective immediately; however, an employer may use the old form until May 7, 2013. The employer need not complete a new form on an existing employee for whom there is already a valid I-9 on file.

The bottom line is that the Form I-9 must be a part of every employer’s new hire checklist. You do have a new hire checklist, don’t you?

 

If your HR policies and practices haven’t recently been reviewed by an attorney, you may be out of compliance. Call Counterpart CFO for a free, no obligation consultation.

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