I-9s – The Mandatory Form Some Employers Overlook

Written by Robert G. Brody and Rebecca Goldberg on July 31, 2013

In the maze of state, federal, and local regulations, some obligations may simply be overlooked.  Although employers have been responsible for verifying all employees’ work eligibility since 1986, even some sophisticated employers have recently told us they are unfamiliar with their obligation to complete this process.  As the federal government ramps up enforcement efforts, if you have not filled out the Form I-9 in the past, now is the time to start.

Any time an employee is hired to work, as long as the work will take place in the United States, the employer must verify the employee’s eligibility to work in the United States.  In most circumstances, this simply entails reviewing documents establishing the employee’s identity and eligibility to work in the United States and completing the Form I-9.  On or before the employee’s first day of work (but not before the employee has accepted an offer of employment), the employer should give him or her the Form I-9.  The employee must complete Section 1 no later than the first day of work.  Within three business days of the first day of work, the employee must show the employer original documents (such as, but not limited to, passports, drivers’ licenses, and Social Security cards) that prove such eligibility.  The employer reviews the documents only to ensure that they look valid (the employer is not obligated to ensure the papers are in fact legitimate) and they pertain to the employee.  The employer fills out Section 2 of the Form I-9, copies the paperwork (normally not required, but recommended for all employees), and is done.  If the documents appear to be invalid (such as a Social Security card bearing an obviously fake number or a drivers’ license for a different person), the employer tells the employee that the documents are unacceptable and requests appropriate documents.  The employer cannot specify which documents it wants and it should treat all employees, whether a citizen or not, the same.  An employee cannot be permitted to work if he or she does not provide acceptable documentation.

There are a few situations where more is required.  Federal contractors and employers in some states are required to use e-Verify, which provides computer-based verification of the employee’s work status.  Also, in some cases (rehires within 3 years, name changes, or when work authorization documents expire), re-verification may be necessary.  There are many resources available to employers to learn more about the process and avoid pitfalls.

Brody and Associates regularly advises management on complying with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More