Just this month, employers got some good news: the Fifth Circuit Court of Appeals reversed a $226,000 fine imposed by the government on a staffing company.
A government audit determined the company improperly had one employee review the original employment verification documents of new hires – Form I-9s, that is – and a different employee in another state sign the company attestation of those documents, using photocopies. Given the court’s analysis of the then-current version of Form I-9, it determined such “corporate attestation” was not prohibited by either the law or the language in the form. The Department of Labor has since changed the instructions so this is no longer allowed.
While this company dodged a bullet, you may not be so lucky. As this case illustrates, Form I-9 mistakes can prove very costly. Now is a perfect time to consider an internal audit of your employees’ Form I-9s and your company’s practices, as the government recently issued guidance for employers on this very issue.
Of course, you should ensure you conduct your audit lawfully, as mistakes made during an audit can themselves prove costly. Here we’ve highlighted some of the most important “dos and don’ts” of the Form I-9 internal audit process.
Do not conduct audits that could be seen as discriminatory or retaliatory.
If you have many Form I-9s on file, chances are you will not be able to review them all. You will need to audit a sampling of them. However, how you choose the sample is very important. The government’s guidance mandates you not conduct internal audits based on citizenship status or national origin and they should not be used in a retaliatory manner against any employee or employees. Thus, focusing on departments with large Latino populations, for example, would be unlawful.
You should also ensure you do not choose a sample based on other protected classes like gender, age, disability or religion. While this advice is not related to the I-9 issue, it remains a best practice based on possible Title VII violations.
Do not correct errors or omissions in Section 1 of Form I-9; have the employee do it.
Because Section 1 of Form I-9 must be completed by the employee, it is the employee who must correct any errors or omissions that are uncovered. The government recommends the employee correct the problem by drawing a line through any incorrect information, entering the correct or omitted information, and initialing and dating the correction.
Preparers/translators can assist with this process if necessary. They should draw a line through any incorrect information and enter the corrected or omitted information, ask the employee to initial and date the corrections if able, and initial and date the corrections themselves. If the preparer/translator was the same one that originally assisted the employee, he or she should leave the certification block as it was. If it is a different preparer/translator, he or she should complete the certification block if blank or else draw a line through the previous information, fill in his or her information and indicate “for corrections.”
Correct Section 2 and 3 errors/omissions yourself.
If you discover errors in Sections 2 or 3 of the form, you should correct those yourself using the same principles discussed above. Do not conceal the original information via erasure or use of whiteout and do not backdate any forms.
Determine whether the Form I-9 documentation presented was acceptable under the then-current rules.
The government’s guidance explains that documentation presented for Section 2 of Form I-9 is sufficient if it was acceptable under the requirements in effect when the specific Form I-9 was originally completed. So, what should you do if you discover an employee filled out a Form I-9 that was outdated at the time it was completed? As long as the documentation presented was acceptable at the time of completion you can correct this by simply stapling the incorrect version to a blank current version, sign the blank version and include an explanation of why it is attached.
If you discover an employee never completed a Form I-9 or it is missing, complete a new form as soon as possible.
If an employee’s Form I-9 is missing or was never completed, complete a current form as soon as possible. If a section is missing, the appropriate party should complete the section. Do not backdate the form. You should also attach a signed and dated explanation and state the date employment actually began in the certification portion of Section 2.
Do not request specific documents if issues are uncovered with the original documents.
The standard for evaluating employment verification documents during an internal audit is the same as when an employee initially completes the form. Does the document reasonably appear to be genuine and relate to the individual presenting it? If you conclude it does not, ask the employee for different acceptable documents. You can state that the problem document will not be accepted again but cannot otherwise specify which acceptable documents the employee must present.
The government cautions you may simply not be able to tell whether a photocopied version attached to a Form I-9 is genuine, in which case you should not request new documentation. While delayed completion of the form is a violation, it is minor compared to an incomplete form.
Do not ask existing employees to complete new forms in lieu of conducting an internal audit.
The government’s guidance cautions employers against obtaining new Form I-9s from existing employees unless a specific form is revealed to be deficient or a systematic problem with the employer’s employment eligibility verification process calls all existing forms into question.
Take appropriate action when problems are uncovered.
It is unlawful under the Immigration and Nationality Act to employ someone knowing they are or have become unauthorized. According to the government, “Not only actual knowledge, but also knowledge which may be fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about an individual’s unlawful employment status.” Therefore, if you receive a credible tip that a specific employee is not work-authorized, you should review the employee’s form.
The challenge for all employers is deciding what is credible. If in doubt, seek legal counsel.
Employees who have a deficiency with their Form I-9s should be given a reasonable amount of time to address the deficiencies and should not be summarily discharged. What is considered “reasonable” should be determined on a case-by-case basis. If an employee is unable to produce acceptable documents within a reasonable time, you should consider whether additional time is warranted.
Lastly, if you uncover that an employee was previously not work-authorized but produces documents proving he or she is currently work-authorized, termination is not required.
WHEN IS THE AUDIT COMPLETE?
Self-audits are great, especially when done carefully. However, they are not done until you have addressed all issues uncovered. If you document errors and then take no action, you have created a smoking gun that proves you knew of a violation and decided to do nothing. This is worse than not doing the audit.
Remember, whatever audit-related documentation you create can be subpoenaed by the government if an investigation is commenced. However, if your documentation shows you did an audit and took all appropriate steps, you will be in good stead should a government investigation begin.
The government’s guidance for completing Form I-9 audits can be found online at https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf. Consult with competent counsel before undertaking an internal Form I-9 audit.
Robert G. Brody is the founder and managing partner of Brody and Associates LLC, a labor and employment law firm in Westport that represents management. He can be reached at email@example.com or 203-454-0560.
Alexander Friedman is an associate attorney at Brody and Associates. He can be reached at firstname.lastname@example.org or 203-454-0560.