I-9 Record Retention Requirements

May 26, 2009

I am sure by this time you know that the Immigration and Reform Control Act of 1986 prohibits employers from hiring persons who are not authorized to work in the United States. Since that time there have been some significant changes including a new form. Keep in mind that you are not permitted to tell the new hires what documentation to present for their verification. When we conduct HR audits we find that the client tell new hires to bring in their social security cards and drivers license. This is a clear violation. Show the I-9 form to the individual and let them choose from the appropriate categories.

The retention requirements of these forms is rather simple. They must be retained for at least three years after the date the employee was hired or one year after after the date the employee separates from employment. Verification records issued by STATE employment agencies must also be retained. The employer is permitted to keep certain copies of any documentation provided by the employee as support for the I-9, however, unless this practice is carried out CONSISTENTLY I would recommend not keeping copies simply because sometimes things slip between the cracks and copies don’t get made for everyone. I had one client who thought the I-9’s only applied to people of Mexican descent. They must be kept for everyone and that now includes the owner of the company and family members! So, keep the copies of the verification records for all, or none at all. Keep in mind that these records must be generally stored in a format that allows them to be reproduced for inspection within 72 hours. Do not store the records (I-9’s) in the personnel files. This is a clear violation and can cause fines to be levied up to $1,000 per violation. Keep the I-9’s all together in a folder with the current employees and a separate folder with the former employees going back one year.

On June 15, 2006, the United States Immigration and Customs Enforcement published an interim rule that allows employers to sign and retain I-9 forms electronically. The new rule does not require employers to use a particular system but does require that the method utilized include:

  • Reasonable controls to ensure the integrity, accuracy and reliability of the system;
  • Reasonable controls designed to prevent and detech unauthorized or accidental use;
  • An inspection and quality assurance program; and
  • A retrieval system that includes an indexing system permitting searches.

These are the requirements for all employers. The size of the company does not matter! The toughest part is remembering to be consistent and ensuring that each form is properly filled out and signed by the appropriate parties.

IRS Employment Records Retention Requirements

May 19, 2009

The IRS requires employers to maintain certain records for a specified period of time. To begin, you must keep all records of employment taxes paid for at least four years. The four-year period is measured from the due date of the tax (or the date the tax is actually paid) for the return period for which the taxes apply. However, with respect to tax returns or information statements that relate to employee’s personal income tax return, records must be retained for at least four years from the later of the due date of the tax to which the return relates or the due of the employee’s tax return (April 15).

Records retained must also include, at a minimum, the following:

  • The employer’s federal identification number;
  • Amounts and dates of all wages, annuity and pension payments;
  • Amounts of tips reported;
  • The fair market value of in-kind wages paid;
  • Records of allocated tips;
  • Dates of employment;
  • Periods for which employees and recipients were paid while absent due to sickness or injury, and the amount and weekly rate of payments the employer or third-party payers made to them;
  • Names, addresses, social security numbers of employees and recipients;
  • Any employee copies of W-2, Wage and Tax statement, that were returned to the employer as undeliverable;
  • Copies of employee’s and recipients income tax withholding allowance certificates (W-4, W-4p, W-4s, W-4v, Voluntary Withholding Request; and form W-5, Earned Income Credit Advance Payment Certificate);
  • Dates and amounts of tax deposits made;
  • Copies of returns filed and;
  • Records of fringe benefits provided, including any supporting documents required to substantiate those benefits as being tax exempt.

In addition, employers should keep detailed records showing all earnings and deductions used in arriving at net pay, including any pretax deductions (e.g. Section 125 elective contributions, 401(K) salary deferrals).

Next week I will post other retention records requirements such as I-9, Family Medical Leave Act, Title VII of the 1964 Civil Rights Act requirements (Discrimination) and a few others. Stay tuned!!!

Diabetes May Now Be Covered Under The ADA

May 11, 2009

The United States Ninth Court Circuit of Appeals (Federal-covers the west coast but has national ramifications) has over turned a federal district court’s (in Arizona) decision that Larry Rohr, an employee of Salt River Project Agricutural Improvement and Power District, was not covered by the ADA because his diabetes was controllable. The higher court disagreed and noted that “diabetes is a physical impairment because it impacts the digestive, hemic and endocrine systems and eating is a major life activity.” The intial lawsuit has now been sent back down to the lower court for the case to be heard entirely on its merits.

The real issue at stake for employers is that they need to becareful when determining the “essential functions” of a given job. In Rohr’s case the employer accommodated him for a year with his work restrictions that he could no longer travel because of his strict medical and eating regimen and he could no longer pass a required annual respirator test, a major requirement of the job.

This is going to require employers to do a careful analysis of what constitutes an essential function using the criteria suggested by the Equal Employment Opportunity Commission (EEOC). Furthermore, under California law, the Department of Fair Employment and Housing on January 1, 2002, issued a directive that states if an employer even “perceives an individual to have a disability, the employer has to engage in an interactive discussion with the employee regarding a reasonable acommodation.” Rohr’s case, as noted, is out of Arizona but because it is a federal case, it won’t take long for California to pick up on it no matter the eventual outcome.

This case is particularly notable to those businesses (especially automobile dealerships) who have positions that require staff to use or pass annual tests lung capacity for the use of respirators. We have received inquiries along this nature over the last few years. As we all know, the laws are always changing! If you have any concerns about determing the essential functions of a job contact us.

Swine Flu and The Work Environment

May 4, 2009

We have been aksed by some employers whether they can request/demand employees to inform them when, and if, they are traveling to Mexico and upon their return require them to present a doctor’s certification that they do not have the swine flu.

In my opinion such demands/requests are really not going to accomplish the intended purpose. First, employees will probably not be so forthcoming with their travel plans, second, a doctor will not know immediately upon their return whether they have the swine flu, and last, such a policy does not take into consideration exposure to someone visiting from Mexico that could give it to a staff member who ultimately brings it back to the workplace. Forget the notion but put something out to the employees (if you so desire) that if they appear to be coming down with the symptoms then to please stay at home.

The symptoms that should be aware of are coughing, fever/chills, sore throat, body aches and fatigue. These are the basics but a physician should be consulted  for greater detail if you become concernewd.

The employees can be encouraged, from a preventative standpoint, to continually wash their hands or use one of those alcohol based santitizers I use Purell! I am in New York this week (on business!!!) and have a small bottle in my pocket. Some passengers on the plane wore masks and were also observed wiping down the arm rests and trays with “wipes.”   People are doing what they have to, or at least what they think they have to do. Avoiding people who are ill is a must as well as remembering the virus enters the body when we touch our eyes, mouth and nose with hands that have not been properly snatized after having made contact with other people. Encourage employees to cover their mouths when coughing or sneezing. They can also keep wipes around to wipe down telephones and other such common use objects.

Finally, in my humble opinion, I think we should not panic about this latest “threat” of an illness that could potentially “wipe us all out!” We have been here before. SARS and Bird Flu have all been similar threats that disappeared and were also given extensive media coverage. Let’s keep our heads and stick with the basics that we should be doing on a daily basis.