Every employer is required to complete the Form I-9 to verify the identity and work authorization of each person hired by them to work for pay. While the new employee must complete their portion of information in the first section on or before their first day of work for pay, the employer must review the original documents presented by the employee, in the physical presence of the employee, by the third day following their first day of work.
This requirement to review original documents, in the physical presence of the employee, is a compliance requirement that presents a challenge to employers with decentralized operations, especially if the company employs many remote employees. This may lead employers to try to come up with “creative solutions” to complete the Form I-9, such as using technology, cell phones, photos, FaceTime or Skype. However, none of these practices satisfy the compliance requirements for document review for the Form I-9 and substituting these practices in place of reviewing original documents in the physical presence of the employee can result in serious consequences for employers.
In Miranda v. Environmental Solutions LLC an employee sued her former employer for wrongful termination after her position was “eliminated” soon after her refusal to falsely certify that she had reviewed original documentation for the Form I-9. Her complaint alleges that after she explained to her employer that Form I-9 rules require that the employer review the original documents in the physical presence of the employee, her employer told her she would need to “get creative” as the employees were needed on the job immediately. Her employer then asked her to review documents through use of a cell phone, which is also not a compliant practice, and Miranda therefore refused. Miranda elevated her complaint to the corporate office where she alleges she was told she had to “make the decision as to whether or not she wanted to do things that were outside the scope of the usual”.
It is important for employers to remember that the Form I-9 does not allow for “creative solutions” in the same manner that other employer practices would. While the Form I-9, and its supporting instruction materials has been improved over time, the basic process of proper completion of the Form, remains largely unchanged since its implementation in 1986. The person certifying to the review of documentation must review the original documents in the physical presence of the employee, and virtual presence (for example via Skype or FaceTime) is not an acceptable substitute for physical presence. You can read more regarding alternatives for employers in our previous blog here, or contact your Maggio+Kattar attorney to discuss your organization’s needs and develop policies and procedures to help support compliant I-9 practices.