In 1986, the Reagan administration instituted use of the I-9 form, requiring employers to verify their employees’ identity and eligibility to work.
While the concept was simple, compliance has been anything but simple.
Noncompliance can cost companies and organizations – even small ones – thousands of dollars and subject them to years of monitoring.
Giant Food’s $29,000 Document Discrimination Settlement
On October 31, 2022, the Department of Justice (DOJ) announced a settlement with one of the latest companies to run afoul of I-9 form compliance, Giant Food.
A non-US citizen complained the company refused to accept a valid form of documentation verifying her permission to work and demanded a different document from her.
A DOJ investigation found the 190-store grocery chain routinely required permanent residents to show their green cards, while they allowed US residents to choose among valid document types. It also showed they had refused to allow the worker who complained to begin working because she did not show her green card.
The settlement required Giant Food to pay $11,000 in civil penalty fines and $18,000 in back pay to the employee. It also directed Giant to train staff in anti-discrimination policies and subjected them to DOJ monitoring for 3 years.
Accidental Noncompliance Happens
It’s not just intentional discrimination that gets companies in trouble. Accidental noncompliance happens with I-9 forms.
Here are 5 common ways accidental noncompliance happens:
- An employee forgets to date a form. Forms must be filled out within 3 days of hire.
- Helpful Human Resources employees prepopulate form responses for foreign-speaking employees to make things easier for them. Employees must fill out the form themselves.
- No one reviews the I-9 form in person for remote employees. In-person review is a requirement.
- The company keeps copies of too many verification documents. This can raise questions of unfair burden on the employees and get the company into similar trouble to Giant Food.
- The company fails to have employees fill out I-9 forms.
Failing to fill out the forms will not only trigger fines, but ratchet up the penalty because there will be a fine for each employee who lacks a form.
A single Subway sandwich shop found this out the hard way.
US Immigrations and Customs Enforcement (ICE) audited the Fayetteville, North Carolina restaurant in January 2009 and found it had completed only 11 forms for the 108 employees who had worked there in the past 3 years.
The 11 forms had errors as well.
ICE assessed a $1,028.50 fine for each violation, resulting in a total fine of $111, 078. Though a judge reduced the fine to $27,000, that’s still a big burden for a small shop.
A form meant to be simple can feel like a minefield.
5 Compliance Tips That Can Save You Time, Money, and Trouble
Here are 5 things you can do to comply with proper I-9 form completion and reduce your risk of fines:
- Send I-9 forms to new employees in advance of their first day of work. Make clear you need to collect the form and see their documentation within their first 3 days of work.
- Set an appointment time to collect the form and see the documentation.
- Date the form. The I-9 form has to be done within 3 days of hire.
- Train your human resources staff to know they cannot ask for a specific piece of documentation nor can they fill out the form for the employee.
- Get an immigration lawyer to audit your I-9 forms to ensure they comply and to highlight errors so you can fix them. The cost of an audit is a fraction of the fines you could incur if ICE decides to audit your company.
When I audit a company with fewer than 200 employees, I review all their I-9 forms. For larger companies, I can usually provide guidance by reviewing a sample of their forms.
I’ve helped companies from a wide range of industries comply – from IT consulting firms to manufacturers to restaurants to engineering firms.
If you would like to learn more about how an I-9 form audit can help your company, please contact me at 630-262-1435.