By Michael L. Thompson
Federal and state governments recognize the difficulty of ferreting out undocumented aliens. For that reason, the tact taken by both is to eliminate the “carrot” that most attracts undocumented aliens to the United States in the first place – jobs. Heightened state and federal enforcement along with hefty penalties are meant to dissuade employers from mining this potential lower-cost labor pool. In light of Alabama’s immigration law, it becomes even more prudent to review the starting point for an employer’s employment verification obligation, the federal Form I-9.
REVIEW VERIFICATION PROCESS
As a threshold issue, unlike many employment laws, there is no minimum number of employees for this requirement to apply. If the business employs one person, that person’s eligibility must be verified using form I-9 published by the Department of Homeland Security. Only the current version and, in some instances one prior version, of the I-9 is acceptable and use of an outdated I-9 will result in a determination that the employer failed to satisfy its I-9 obligations.
The I-9 verifies the employee’s identity and employment eligibility and must be completed within three days of the employee commencing employment. Employers must have a completed I-9 on file for any employee hired after Nov. 6, 1986. The employee must complete and sign Part I of the I-9 on the first day of work. The employer’s representative then completes Part II of the I-9 and verifies that certain documents presented by the employee appear to be legitimate and identifies the documents. These documents establish the person’s identity and employment eligibility, and the documents must be among those listed in the I-9 instructions. With limited exceptions, the documents must be original and the employer must accept whichever documents off the list that the employee elects to present, i.e., the employer cannot require any particular document. The employer may, but is not required to maintain copies of the supporting documents although the practice – maintaining or not maintaining the documents – must be consistent for all new employees. Employers using the E-Verify process, including in states such as Alabama that mandate usage of E-Verify, can require that the new employee provide the specific documents required for the E-Verify process.
The employer is required to maintain completed I-9s for all of its employees during the entire term of their employment and for a period of up to three years thereafter. Although there are actually two rules related to the retention period for I-9s, for simplicity, we advise retaining the completed forms until three years after the employee terminates employment. I-9s should be maintained separate from the employer’s other personnel materials, and we recommend maintaining them in two separate folders/binders and/0r electronic files. The first binder should contain the I-9s of current employees arranged alphabetically, and the second should contain terminated employees’ I-9s arranged chronologically by termination date. Older I-9s should be disposed of periodically from the second binder. Employers also have the option to complete and/or retain the I-9s electronically but the regulatory requirements for doing so should be closely examined before implementing such a system.
AVOID COMMON DEFICIENCIES
Common deficiencies in employers’ I-9 process, include the use of outdated I-9 forms (the current version is November 14, 2016) and incomplete or missing I-9 forms. The degree of culpability for a missing or incomplete I-9 form depends on the information that is missing from the form as Homeland Security has deemed certain information (e.g., date of hire) less significant than other information on the form (e.g., employer’s attestation that the documents appear legitimate). If deficiencies are discovered in the I-9 process by either Homeland Security or the Department of Labor during an audit, the employer will be fined based on the number and severity of the violations. Also, if your I-9s have issues, the E-Verify process, which the state requires you to use could end up tainted as well. Finally, note that the E-Verify requirement is an additional requirement and is not in lieu of the I-9 process.
CONSIDER AN INDEPENDENT AUDIT
Employers are encouraged to perform at least a self-audit of their current I-9 process and their existing I-9 forms. An independent audit would provide even more assurance that the records are all in order. In making corrections to incomplete I-9s and/or completing I-9s for current employees without an I-9 on file, the employer should NOT backdate the form. Any changes or additions to the form should be clearly designated in some way, such as using a different color of ink. A “good faith” defense may be available to the employer taking voluntary corrective action. Additional guidance is available from Homeland Security in the April 30, 2013, updated version of the HANDBOOK FOR EMPLOYERS available at http://www.uscis.gov/files/form/m-274.pdf. Additionally, Lehr Middlebrooks Vreeland & Thompson is available to assist with any questions employers might have.
Mike Thompson is a managing shareholder with Birmingham labor and employment law firm, Lehr Middlebrooks Vreeland & Thompson, P.C., which provides information for the Alabama Retail’s Employment Law Resource Center. The firm represents employers exclusively regarding workplace matters. As an Alabama Retail member, another benefit from the value of your membership is access to the Employment Law Hotline operated by the firm. Be sure to identify yourself as an Alabama Retail member calling the Employment Law Hotline to receive free advice. For the hotline number, fill out the form here.
This Sept. 12, 2011, article originally appeared in the Third Quarter 2011 edition of Alabama Retail Quarterly (Page 7). Last updated Dec. 13, 2016.