I-9s in Employee Files?
By Kevin M. Mosher • Jun 14, 2019
Every week there seems to be news critical for HR professionals to know. This week has been no different but sometimes it’s nice to have a straight question and response, because, as lawyers, we love to ask rhetorical questions of ourselves and then answer them. Below is one such question.
Question: Do I need to keep my employees’ Form I-9 separate from the employees’ personnel files?
Answer: No, there is no law that requires you maintain the I-9 in a separate file. However, it’s a good practice to do so.
Why? There are three main reasons:
First, the Department of Homeland Security’s ICE division may investigate and audit your company’s I-9 compliance. Audits have increased significantly the past several years and the likelihood your company gets audited has increased, and the fines can be excessive, particularly considering the seemingly simple nature of complying with the rules regarding the I-9. If your company is ever audited by the federal government you will have 3 days to put together all of the I-9s for your current and certain former employees. In that time you need to review the I-9s yourself and do damage control, but that may not be possible if you’re digging around personnel files looking for the I-9s.
Second, if you are raided by ICE it will want those I-9s. If the I-9s are in the personnel files then you’d have the federal government going through personnel files seeing information on your employees that you potentially don’t want them to see.
And finally, the I-9 has a different retention period than all other documents. While most employment records have a retention period of 1-3 years, the retention period for the I-9 is not always easy to calculate. Meaning, you don’t want to accidently put it into a pile of documents to be destroyed when it might be premature to do so.
If you have any questions regarding I-9s and employee files, please contact your Thompson Coe attorney at (651) 389-5000 or at myHRgenius@thompsoncoe.com. You can also find additional information and tips for your company and HR professionals at https://myhrgenius.co.
Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.