There has been substantial publicity concerning the employee problem of California gubernatorial candidate Meg Whitman. It is alleged that she was insufficiently active in determining the true citizenship status of her housekeeper. Some commentators have suggested that Mrs. Whitman should have demanded that the housekeeper produce her passport, a letter from the Social Security Administration about her eligibility, etc. Those commentators simply don’t understand the law.
Overzealous investigation of an employment applicant’s citizenship status can lead to federal investigations. In fact, more car dealers have found themselves under investigation for overzealous screening of job applicants than have found themselves under investigation for lax compliance with I-9 requirements.
The problem is that the U.S. Department of Labor has a division (not surprisingly) that is empowered to investigate complaints of employment discrimination against job applicants. Dealership personnel should understand the federal form I-9 and follow its instructions carefully.
- The dealership must complete a Form I-9 for every person hired within three business days following employment. The law requires this, and screening only those who appear not to be citizens will lead to trouble.
- The employee must complete section 1 of the I-9. The employer is responsible to ensure that the employee fully and properly completes section 1.
- The employer must review documents that establish identity and employment eligibility. The eligible documents are listed on the back of the I-9 in three categories. Some documents establish both identity and employment eligibility (detailed on I-9 form list A). Other documents establish only identity (detailed on I-9 form list B) or only employment eligibility (detailed on I-9 form list C).
- The law gives the employee the right to determine what document or documents he or she wishes to provide. The employee must provide either a document from list A, or one document from list B and one document from list C. The dealership must accept the choice made by the employee. The employer may not dictate the specific document it will accept. The misunderstanding of this requirement is what led Ms. Whitman’s critics to suggest that she should have demanded further documentation from her employee. A potential employer is not entitled to demand any proof that the employer decides it wants. The I-9 form designates the proof that the applicant may choose to provide, and the employer is bound by that choice.
- A dealership representative must review the document or documents provided by the employee and record the appropriate information on section 2 of the I-9 form.
- If an employee is unable to present the required document or documents within three business days of the date of employment because the employee has applied for the appropriate documents, then the employee must present a receipt for the application within three business days. In that case, the employee must indicate, by checking the appropriate box in section 1, the eligibility to be employed in the United States. When the dealership reviews the receipt showing that the employee has applied for a document evidencing eligibility, the dealership should record the document title in section 2 of the form and write the word “receipt” and any document number in the document number space. The employee then has ninety days within which to present the actual document at which time the I-9 form should be revised to cross out the word “receipt” and insert the information about the document or documents presented.
- The dealership must retain a completed form I-9 for three years after a person’s employment begins or one year after a person’s employment is terminated, whichever is later.
These are not requirements that should be taken lightly. The government may investigate companies that have been too stringent in enforcing I-9 requirements by demanding specific documents to prove identity and show employment eligibility as well as companies that are not sufficiently stringent in enforcing the I-9 requirements.
There has been substantial publicity concerning the employee problem of California gubernatorial candidate Meg Whitman. It is alleged that she was insufficiently active in determining the true citizenship status of her housekeeper. Some commentators have suggested that Mrs. Whitman should have demanded that the housekeeper produce her passport, a letter from the Social Security Administration about her eligibility, etc. Those commentators simply don’t understand the law.
Overzealous investigation of an employment applicant’s citizenship status can lead to federal investigations. In fact, more car dealers have found themselves under investigation for overzealous screening of job applicants than have found themselves under investigation for lax compliance with I-9 requirements.
The problem is that the U.S. Department of Labor has a division (not surprisingly) that is empowered to investigate complaints of employment discrimination against job applicants. Dealership personnel should understand the federal form I-9 and follow its instructions carefully.
- The dealership must complete a Form I-9 for every person hired within three business days following employment. The law requires this, and screening only those who appear not to be citizens will lead to trouble.
- The employee must complete section 1 of the I-9. The employer is responsible to ensure that the employee fully and properly completes section 1.
- The employer must review documents that establish identity and employment eligibility. The eligible documents are listed on the back of the I-9 in three categories. Some documents establish both identity and employment eligibility (detailed on I-9 form list A). Other documents establish only identity (detailed on I-9 form list B) or only employment eligibility (detailed on I-9 form list C).
- The law gives the employee the right to determine what document or documents he or she wishes to provide. The employee must provide either a document from list A, or one document from list B and one document from list C. The dealership must accept the choice made by the employee. The employer may not dictate the specific document it will accept. The misunderstanding of this requirement is what led Ms. Whitman’s critics to suggest that she should have demanded further documentation from her employee. A potential employer is not entitled to demand any proof that the employer decides it wants. The I-9 form designates the proof that the applicant may choose to provide, and the employer is bound by that choice.
- A dealership representative must review the document or documents provided by the employee and record the appropriate information on section 2 of the I-9 form.
- If an employee is unable to present the required document or documents within three business days of the date of employment because the employee has applied for the appropriate documents, then the employee must present a receipt for the application within three business days. In that case, the employee must indicate, by checking the appropriate box in section 1, the eligibility to be employed in the United States. When the dealership reviews the receipt showing that the employee has applied for a document evidencing eligibility, the dealership should record the document title in section 2 of the form and write the word “receipt” and any document number in the document number space. The employee then has ninety days within which to present the actual document at which time the I-9 form should be revised to cross out the word “receipt” and insert the information about the document or documents presented.
- The dealership must retain a completed form I-9 for three years after a person’s employment begins or one year after a person’s employment is terminated, whichever is later.
These are not requirements that should be taken lightly. The government may investigate companies that have been too stringent in enforcing I-9 requirements by demanding specific documents to prove identity and show employment eligibility as well as companies that are not sufficiently stringent in enforcing the I-9 requirements.