Question:

I recently bought a small manufacturing operation. I just learned that the prior owner did not require new employees to produce proof of employment eligibility and did not complete I-9s. He believed that he was exempt because he only hired U.S. citizens. I think that he is incorrect and want to bring this company into compliance. Should I require the employees to produce the documents necessary to complete I-9s? What if they refuse?

Answer:

The Immigration Reform and Control Act requires all United States employers to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including United States citizens. The only exceptions to this rule are:

  • Employees hired before November 7, 1986, who have been continuously employed by the same employer.
  • Individuals providing domestic services in a private household that are sporadic, irregular, or intermittent;
  • Individuals providing services for the employer as an independent contractor (i.e., they carry on an independent business, contract to do a piece of work according to their own means and methods, and are subject to control only with regard to results of the job and the hirer does not set work hours or provide necessary tools to do the job); and
  • Individuals providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)

Generally, when a new business is purchased, there are existing I-9 records. In that case, the new employer may keep the acquired employer’s I-9 records rather than complete a new Form I-9 on employees who were also employees of the acquired employer. However, since the new employer could be held responsible for any errors, omissions or deficiencies in the Form I-9s completed by the previous employer, many employers choose to protect themselves by having a new Form I-9 completed for each acquired employee.

In your case, because the previous employer did not require I-9s, you must complete a new Form I-9 for each employee immediately. As long as the policy is applied uniformly, you can terminate any employee who fails to produce the required documents, or a receipt for replacement documents within three business days.

It is important that you move forward with bringing the company into compliance because fines for failing to maintain Form I-9s for all employees range from $110 to $1100 per employee regardless of whether the employee is authorized to work in this country.
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