“Should I photocopy or scan employee documents?” This is a question I receive a lot regarding the Form I-9 process. Small business owners understand the importance of completing this mandatory form, but they’re not sure if they should keep copies of the documents new hires provide.
And now a more detailed explanation:
If you decide to make copies or electronic images of employee documents, they become fair game if you’re ever inspected. If officials from the Department of Homeland Security (DHS), Department of Labor (DOL) or other federal government agencies come knocking, you’ll have no choice but to share your I-9 documentation. Upon inspection, these documents act as legal proof that your employees provided the required documents — and that you reviewed and verified them. That’s a good thing, right?
Not necessarily. This practice can become a “double-edged sword” because the copies become evidence of your compliance — and could be used against you. For example, if you’re missing a copy from your records, it could appear as if you didn’t receive or review a document. More concerning, if a copy reveals a problem with the original document or doesn’t match the employee’s identity, you could be charged with knowingly employing an unauthorized alien.
Further still, keeping copies could put you at risk of potential “document abuse discrimination,” which includes:
So, let’s say you’ve decided to forego copying documents. Your next question may be, “How can we prove we’re in compliance?” When you or an authorized representative complete the Form I-9, legal compliance is assumed through something called “attestation.” This legal certification in Section 2 of the form reads:
Even with this knowledge, you may feel more comfortable holding on to copies. As I mentioned earlier, you still have that right as the employer. My advice, then, is this: Be absolutely certain you’re meeting all of the legal requirements, including careful verification of documentation. Any oversights could put you in the hot seat in a formal investigation.
Although the government doesn’t require you to be a “document expert,” it expects you to only accept documents that appear to be genuine and related to the employee providing them. Here are some additional tips to guide you with the examination and handling of I-9 documentation with newly hired employees.
If you receive a document that doesn’t seem genuine, isn’t related to the employee or doesn’t appear under the Lists of Acceptable Documents.
Then reject the document and ask for another one that meets the requirements.
If the employee writes more than one last name in Section 1, but presents a document with only one of those names.
Then ask the reason for the difference. If the response is acceptable, attach a memo to the Form I-9 explaining the discrepancy.
If the employee presents a document with a slightly different spelling of his or her name than the name in Section 1.
Then ask the reason for the difference. If the response is acceptable, have the employee
1) correct the Form I-9 with the full legal name and initial the change or
2) provide a different document with the correct spelling or
3) provide a corrected document. Note: If the spelling is completely different, ask the reason and attach a memo to the Form I-9 explaining the discrepancy.
If the employee cannot provide documentation that meets the Form I-9 requirements.
Then you may terminate employment.
Bottom line: If you can’t verify the individual’s identity and eligibility to work in the United States, you shouldn’t hire them.