Four Common I-9 Mistakes Employers Make with Virtual and In-Person Employees

By Ashlyn Kahler-Rios
Caplan & Earnest

If you are like most employers, there are few things as exciting as finding that perfect prospective employee who then accepts your job offer. The corollary of that is that nothing takes the edge off of that joy like starting the paperwork process to onboard them. And now that we’re in the era of the “Great Recession,” you may find yourself going through the hiring process even more often.

One of the most basic elements of hiring is that all U.S. employers must complete a governmental form I-9 form for each employee they hire, no matter the length or nature of the employment relationship.

Although the I-9 form is a seemingly simple, two-page employment eligibility verification form, many employers make mistakes that leave them exposed to liability, enforcement, and fines for violations. And in an age of remote hiring and remote work, it’s easy to overlook the importance of adhering to consistent and compliant I-9 policies.

Here are four of the most common mistakes made by employers in relation to I-9s:

1. Not completing the I-9 on time

Employers must complete and sign Section 2 of the I-9 within three business days of the employee’s date of hire. Missing that deadline is one of the most common I-9 mistakes that businesses make, and it can put you at risk for audits or fines.

2. Telling employees what documentation they should provide as proof of identity and/or work authorization

The I-9 form lists a number of acceptable types of identification that an employee may present in conjunction with their I-9. However, employers may not require – or even recommend – that employees bring specific documents from the list. Doing say may render your organization liable for using discriminatory practices or subject your organization to significant fines.

3. Forgetting to re-verify

Some employee work authorization documents require reverification due to expiration during employment, andemployers are required to reverify them before the documents’ expiration date. Failing to do so may result in your organization employing someone who is no longer authorized to work in the U.S.

4. Failing to conduct internal audits

Self-audits can help identify and fix I-9 errors and omissions, eliminate records you are no longer required to keep, and ensure you are not inadvertently employing someone without authorization. Internal audits frequently catch issues before they put you at risk of audits or fines.

My colleagues at Caplan & Earnest and I work with companies and organizations ranging from education institutions to small businesses to the Fortune 500 to help them conduct internal compliance reviews and plans. While performing an internal I-9 audit may seem complicated and tedious, internal audits are one of the best practices to minimize the potential for fines and the risks of liability for inadvertent violations.

As compliance technology improves, we will continue to see stricter enforcement in this realm. Violations can result in criminal and civil prosecution and sanctions, as well as supplemental investigation by the Office of Special Counsel, Department of Labor, or Internal Revenue Service.

If you have questions about legal issues relating to employees or employment, please give us a call at 303-443-8010 or send me an email at akahler-rios@celaw.com. The time to ensure employer I-9 compliance is now.