Form I-9 Compliance: As Easy as the Government Sending Your Employee an E-mail
[Editor’s Note: today’s blog is courtesy of attorneys Sean Hanagan, Kevin Lashus, and Roger Kaplan of Jackson Lewis P.C.]
The federal government’s updated employment verification Form I-9, which went into use on May 7, 2013, includes two new optional fields in Section 1 calling for the new hire’s personal e-mail address and telephone number. The fields are at the beginning of the new Form.
New employees routinely complete these additional fields. And why not? After all, this is a government form and there are spaces calling for the information! However, the instructions on the Form for completing these fields make clear the information is not required. They state:
E-mail Address and Telephone Number (Optional): You may provide your e-mail address and telephone number. Department of Homeland Security (DHS) may contact you if DHS learns of a potential mismatch between the information provided and the information in DHS or Social Security Administration (SSA) records. You may write “N/A” if you choose not to provide this information.
The question employers should ask is why would the government want that information?
The answer is plain … and concerning for employers. This information can facilitate the government’s contacting employees, without the employer’s knowledge, during audits or investigations to inquire about the company’s verification compliance practices. Questions asked by recruiters and managers in hiring, employer requests for forms of identification and work authorization in connection with completion of the Form I-9, and the method (electronic or manual) of completing the Form may be the subject of government inquiries to employees.
The situation can get even more complex for employers that participate in E-Verify, the Internet-based system for verifying the eligibility of new employees to work in the United States. U.S. Citizenship and Immigration Services (USCIS) has stated that it may directly contact employees who provide their e-mail addresses on the Form if the employees’ E-Verify case results in a Tentative Non-Confirmation (TNC). It does not plan to copy the employer on such e-mail notifications, USCIS said. Further, the employee may be asked how the employer responded to receipt of the TNC, whether the proper advice was provided to the affected employee, and whether the information resulted in leave, suspension or separation from employment. The answers may set the stage for further investigation.
Additionally, U.S. Immigration and Customs Enforcement (ICE) may find use for employees’ personal contact information. ICE audits no longer involve just a review of an employer’s historical compliance with authorization verification. They look into regulatory compliance in hiring, work authorization verification, payroll and tax reporting. In today’s typical audit, quarterly tax filings, active payroll rosters, lists of subcontracted “workers” and service providers, Social Security “no match” notifications and E-Verify receipts may come under government scrutiny in addition to I-9 forms and supporting documentation. This may be done with a prosecutor’s eye. As is the case of many regulatory reviews, government agents can be far more interested in identifying deficiencies with a view towards a criminal case than they are in educating employers and reviewing on-boarding procedures to assure employer adherence to lawful practices.
If employees elect to include their e-mail address and telephone number, as is their right, the government may contact them about the employer’s verification practices – that much is generally understood. Obviously, as an employer, you cannot instruct an employee to omit data from the optional fields. That could lead to charges of document tampering. A company could find itself in an ugly fight over alleged criminal intent – with bad publicity to match – if it attempted to do so.
An employer’s verification standard operating procedure that outlines and explains the process to new hires can include an explanatory statement regarding the optional fields on the Form I-9. It could be as simple as advising new hires during on-boarding that the information in those two fields is optional and that if they choose to provide the information, under some circumstances, they may be contacted by the government. Make sure your hiring and I-9 verification procedures are lawful and above reproach. Immigration counsel should be consulted if an employer is in doubt about its procedures.