Question: Business has picked up significantly and I want to start the New Year with new employees to expand my workforce. I went through the hiring process over a year ago, and a lot has changed politically since then. Do I still need to verify new employees’ identity and eligibility to work in the United States? If so, has the process changed at all?
Answer: Yes and yes. Federal law requires employers to verify that new (or in some cases re-hired) employees are authorized to work in the United States. Recent changes to the Form I-9 and California law require employers to review and update hiring processes for the upcoming year.
All U.S. employers must ensure the proper completion of a Form I-9 for each individual they hire, including U.S. citizens and noncitizens. Beginning January 22, 2017, all employers must use the updated “11/14/16” Form I-9 to verify the identity and employment authorization for all individuals hired. Until then, employers may use either the “03/08/13” Form I-9 or the updated form. Both versions of the Form I-9 and the separate instructions for the updated form carry the edition date at the bottom of the page and are available on the U.S. Citizenship and Immigration Services Website: https://www.uscis.gov/i-9.
Federal law still requires newly hired employees to complete and sign the employee information and attestation section of the Form I-9 no later than the first day of work. Federal law also requires that within three business days of the first day of work, employees must present to their new employers acceptable documents (as identified on the last page of the Form I-9) establishing the employees’ identity and right to work in the United States. The employer must examine the employment eligibility and identity documents an employee presents to determine whether the documents reasonably appear to be genuine and relate to the employee.
As of January 1, 2017, California law prohibits an employer from requesting more or different documents than what the federal Form I-9 requires. California also makes it unlawful for an employer to refuse to accept documents presented that reasonably appear to be genuine, and to refuse to honor documents or a work authorization based on a specific status or term of status accompanying the work authorization. For example, an employer may not refuse to hire an employee simply because of an impending expiration of an employment document presented. Also prohibited is reinvestigating or re-verifying an existing employee’s authorization to work, unless required to do so by federal law or authority. Failing to comply with these laws carries a heavy price: a $10,000 penalty assessed by the California Labor Commissioner against the employer for each violation. These new laws expand upon the already-established California labor law protections for undocumented workers and their right to be free from retaliation in the workplace.
These are just a few of the new laws on the books for 2017. With the New Year right around the corner, employers should review their employment policies and practices to ensure continuing legal compliance.