By: Tommy Eden, Attorney
The U.S. Department of Homeland Security (DHS) on July 22, 2010 (effective Aug. 23, 2010), published a final rule in the Federal Register on the electronic signature and storage of the Form I-9. It also recently released new field guidance on worksite enforcement, strengthening its efforts to target employers who knowingly violate the law; increases the use of administrative tools such as Form 1-9 audits, criminal prosecutions, seizure of assets, civil fines, and debarment. For more information see http://www.dhs.gov/
• Must complete a Form I-9 within three business—not calendar—days.
• May use paper, electronic systems or a combination of paper and electronic systems.
• May change electronic storage systems as long as the systems meet the performance requirements of the regulations.
• Need not retain audit trails for each time a Form I-9 is viewed electronically, but only when the Form I-9 is created, completed, updated, modified, altered or corrected.
• May provide or transmit a confirmation of a Form I-9 transaction but are not required to do so unless the employee requests a copy.
• DHS clarified that employers may, but are not required to, copy or make an electronic image of a document used to comply. It cautioned, though, that employers should apply consistent policies and procedures for all employees to avoid discrimination.
• Only the pages of the Form I-9 containing employer- and employee-entered data need be retained. Other pages of the current form are instructions for completing the Form I-9 and need not be retained.
• DHS cautioned that providing the option of electronic preparation and storage does not alter the requirement that the employer physically examine any documentation provided by the employee in the presence of the employee prior to completing the Form I-9.
Common Sense Counsel: I-9 Best Employment Practices
1. Use the DHS employment eligibility verification program E-Verify to verify the employment eligibility of all new hires (E-Verify is used by more than 126,000 employers nationwide, with 1,000 new businesses joining each week);
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com