Aye, Yai, Yai, I-9! Staying out of Trouble With Employment Eligibility Forms

With more focus than ever being put on immigration and citizenship, there's a renewed emphasis on I-9 compliance. Here's what you need to know to stay on the right side of the law.

In the past, large fines and penalties relating to I-9 non-compliance were rare, but in our new society with heightened focus on immigration and citizenship, Immigration Custom Enforcement (ICE) audits, investigations and even raids on employers are becoming more common. Recently, employers in the U.S. have experienced a crackdown on all matters relating to immigration resulting in I-9 responsibilities and compliance becoming more important than ever. I-9 non-compliance penalty amounts are increasing and at least one Court has recently held that violations that occurred years ago can be assessed at current penalty rates.  Also, fines and penalties can be assessed based on each I-9 form found not to be in compliance with federal law.  The amount of penalty is dependent on the date of the violation. Case law also has found that violations are generally considered to be continuing until corrected as opposed to a one-time violation resulting increased fine amounts.

ICE routinely argues in these types of cases, that the fines must be significant despite the size of the employer, to ensure compliance and deter future non-compliance by all employers.  The Department of Justice recently announced the largest I-9 fine and penalty ever assessed at $34 million. In contrast, a dry-cleaning company who employed only 25 employees was recently fined over $44,000 for I-9 non-compliance. Non-compliance with I-9 requirements has become costly to employers and requires new attention and concern.

What is an I-9, who needs to have one, and what documents are acceptable

Employment Eligibility Verification Form I-9 is a United States Citizenship and Immigration Services (USCIS) form. Mandated by the Immigration Reform and Control Act of 1986, it is used to verify the identity and legal authorization to work of all paid employees, both citizens and non-citizens in the United.  All U.S. employers must ensure proper completion of Form I-9 for everyone they hire for employment in the United States.

Both employees and employers (or authorized representatives of the employer) must complete the form. On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appears to be genuine and to relate to the employee and record the document information on the Form I-9.  

Employers cannot mandate what documentation that the employee presents, but there is a list of acceptable documentation that meets the requirements of proof for I-9. These documents have been categorized into three lists.  List A documents establish both identity and employment authorization such as a passport or passport card.  If no documentation is available to comply with List A, List B documents establish identity such as a driver’s license and a variety of identification cards along with documents from List C that establish employment authorization. List C documents include, but are not limited to social security card, birth certification or employment authorization card issued by the Department of Homeland Security.  I-9 also allows for specific documentation for individuals under the age of 18 and for those who are not citizens. 

An employer may not discriminate in failing to hire an employee due to the future expiration date on a document presented in response to an I-9 request. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

Making sure an I-9 is completed correctly

Section 1 is completed by the employee, but the employer is required to ensure that the form is complete and accurate. Section 1 requires the employee to give his or her full name and maiden name. The employee must indicate by checking the appropriate box whether he/she is a citizen, non-citizen, lawful permanent resident or an alien authorized to work in the U.S.  Employee must sign and date this section and indicate whether a translator was used in the preparation of the form.

Section 2 is completed by the employer and must be done within 3 days of the hire date of the employee. Employers are required to inspect the documents presented by the employee, note the type of document, issuing authority and expiration date.

Section 3 is to only be completed by the employer when necessary and relates to reverification and rehires.

Common errors or omissions made by employers in completing the I-9 include:

  • Failure to use the most current I-9 form.  Current form is USCIS Form I-9 OMP No. 1615-0047 (Expires 8/31/2019) and can be obtained at www.uscis.gov/i-9.
  • Failure to complete both sections of the I-9.
  • Failure to include past/maiden names of the employees, and if no prior names were used “N/A” should be noted on the form.
  • Failure to include the employee’s first day of employment.
  • Failure to provide complete name and address of the employer.

The form is complete. Now what?

Do not mail or send the completed form to USCIS or ICE but instead retain original document.

If a mistake is found or later discovered on the I-9, employers are required to correct the mistake by completing a new form but should not post-date the corrected form.

Under record keeping rules, employers are required to retain all I-9 forms for 3 years after date of hire or 1 year after date of separation, whichever comes last.  Employers should have I-9 completed forms on all current employees. Employers are not required to keep photocopies, but if you decide to do so, make sure that this is consistent for all employees.  Finally, keep your I-9 forms separate and apart from the employee’s other personnel records to minimize exposure in an audit or investigation by keeping unrelated personnel documents out of the inquiry.

This article is meant to be utilized as a general guideline for Employment Eligibility Verification Form I-9. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first.  If you have questions about your particular legal situation, you should contact a legal professional.

Cathryn Ensign’s practice focuses on employment law. She can be reached at 216-287-2979 or by email at ce@gertsburglaw.com.

Stop worrying if your company is vulnerable to lawsuits or liability and schedule a confidential, no-cost CM6 Vulnerability Check with Gertsburg Law Firm. CEO Alex Gertsburg will walk you through the minefields in your documents and key processes and tell you how to fix them yourself. Call 440-571-7774 or e-mail

mc@gertsburglaw.com to schedule your CM6 Vulnerability Check today. Explore the full CoverMySix legal audit suite at covermysix.com.

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  • Next up: Tips for Your Business: Be Disaster Ready
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  • Tips for Your Business: Be Disaster Ready

    July 8th was an anxious day for some and a fearful one for others. During the course of a four-hour span, three well-known institutions – United Airlines, the New York Stock Exchange and The Wall Street Journal – were suddenly offline, leaving their customers, partners and the global market fretting over a possible larger-scale issue. While each of these organizations continue to consider the effect of these outages and what could have been done to prevent it, all businesses can learn a valuable lesson from this calamity. Ask yourself: Are you prepared for a disruption to your business?

    July 8th was an anxious day for some and a fearful one for others. During the course of a four-hour span, three well-known institutions – United Airlines, the New York Stock Exchange and The Wall Street Journal – were suddenly offline, leaving their customers, partners and the global market fretting over a possible larger-scale issue.

    While each of these organizations continue to consider the effect of these outages and what could have been done to prevent it, all businesses can learn a valuable lesson from this calamity. Ask yourself: Are you prepared for a disruption to your business?

    The ever-increasing reliance on technology has brought business continuity and disaster recovery to the forefront of many businesses, presenting a challenge to IT and business leaders as to how to create an effective disaster recovery (DR) plan. 

    The first step in creating a DR plan is identifying and understanding the types of common disaster events that can affect your business, including:

    • Environmental – tornado, hurricane, snowstorm, flood, and fire.
    • Deliberate – terrorism, sabotage, theft, arson (internal personnel or external).
    • System Failure – hacker, employee destruction.
    • Other Emergency Situation – public transportation, governmental, legal.

    Once these events have been classified, establishing a DR checklist is the next step. Below is a standard outline of a checklist:

    • Justification – Define the Executive Sponsors. Executive Sponsors are the business leaders within your organization responsible for creating a DR plan.  Business leaders must determine the timeframe for recovery (how long can the business be unavailable), as well as establish a budget to support the initiative. In general, this phase begins the process of establishing a business impact analysis, which is a risk assessment of the impact to your business should a disaster occur.
    • Inventory – Document your entire IT environment (applications, network elements, access points, data, etc.).  You will also need to understand how the applications and data are being accessed and used by employees, partners and customers. 
    • Prioritization – Prioritize applications in tiers, from the most to least critical.
    • Budgeting – Forecast the initial setup fees (capital expense) as well as the operating cost of managing a disaster recovery plan. Operating costs include training, testing, fees to host the DR environment and the applicable software licensing fees.
    • DR Planning – Formalize an action plan in the event a disaster impacts your business. Elements of this plan should include an appropriate alternative location to operate from (technology platform and people), processes and procedures for declaring a disaster, and individual and/or team-based responsibilities in the event a disaster is declared.
    • Maintenance – Be diligent in revising the plan as technology and your business evolve and change. Test your DR plan annually and review the outcomes to understand what gaps occurred and what risks can be mitigated, and update the plan accordingly.

    Once the dust settled from the outages of July 8th and the cause of each disruption surfaced, the concern of a terrorist cyber-attack was diminished. It was revealed United Airlines suffered a network outage that caused the carrier to ground flights by more than an hour, the NYSE’s online trading platform crashed due to a misguided software update and WSJ.com was overwhelmed by traffic due to investors and the market seeking information as to why the NYSE trading environment was offline.  

    Even a small scale disaster can impact business on many levels. In the event of a disaster or disruption to your business, do you have a plan in place to continue your day-to-day operations? 

    David Saliba is vice president of Expedient, a leading provider of cloud computing, managed services and colocation in Cleveland.

    This article originally appeared in the August 3, 2015, edition of Small Business Matters.


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  • Next up: "Best Benefits Decision I Ever Made…"
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  • "Best Benefits Decision I Ever Made…"

    “Joining COSE’s group-rated Workers’ Comp Program has helped me in my business in so many ways. Not only has COSE saved me money on premiums, but they understand my needs and can fight for me better than any other program. I’m not just another number among many other businesses to them. They provide individualized attention and navigate my problems for me, leaving me to continue focusing on what I’m passionate about – my restaurants.”  - Eric Williams, owner, Momocho and El Carnicero, and partner, Happy Dog and Jack Flaps

    “Joining COSE’s group-rated Workers’ Comp Program has helped me in my business in so many ways. Not only has COSE saved me money on premiums, but they understand my needs and can fight for me better than any other program. I’m not just another number among many other businesses to them. They provide individualized attention and navigate my problems for me, leaving me to continue focusing on what I’m passionate about – my restaurants.”

     - Eric Williams, owner, Momocho and El Carnicero, and partner, Happy Dog and Jack Flaps

    With his passion for good food and his desire to support his hometown and the local economy, Eric Williams has independently opened or partnered in some of Cleveland’s hottest restaurants in the last few years. He has encountered a few bumps along the way, with new and different challenges for each new operation, and relied on COSE’s workers’ comp team to help him navigate the obstacles.

    Get a free quote on COSE’s group-rated Workers’ Compensation Program.

    This article originally appeared in the March 23, 2015, edition of Small Business Matters.



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  • Next up: Parting on Good Terms: Best Practices for Severance Agreements
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  • Parting on Good Terms: Best Practices for Severance Agreements

    Sometimes you have to say goodbye. When you need to let go of an employee, make sure the severance plan at your company is in top form by following these steps.

    We have previously written about employee terminations. However, once an employer has decided that it is proper to terminate an employee, what are the best practices to facilitate that termination? For starters, among other things, the employer should strongly consider asking the departing employee to enter into a separation and release of claims agreement—which is more commonly referred to as a “severance agreement.” In this article, we will explore a handful of the many important provisions that deserve very careful consideration when drafting an employee severance agreement.

    A severance agreement is a contract between an employer and a departing employee that sets out the terms of the employee’s separation. These contracts routinely include releases of legal claims that the employee may have against the employer in exchange for benefits that the employee would not otherwise be entitled to receive. They might also include protections for the employer’s confidential information, as well as restrictions on the employee’s ability to compete with the employer, among many other important items.

    Whether an employee’s departure is voluntary or involuntary, employers should consider asking departing employees to execute well-written, legally compliant severance agreements for three reasons.

    First: The releases contained in severance agreements can generally minimize the risk of post-termination litigation between the employer and the employee.

    Second: Severance agreements can serve as useful reminders of employees’ continuing obligations under any existing restrictive covenants (i.e., an ongoing promise to continue doing or refrain from doing something), and they can, moreover, provide a means for departing employees to reaffirm their obligations under these covenants.

    Third: Severance agreements also give the employer a chance to bind departing employees to new, post-termination restrictive covenants.

    Release of Claims

    As mentioned above, the departing employee’s release of claims in a severance agreement can help the employer avoid post-termination litigation. However, special care is required when drafting this portion of the severance agreement because certain kinds of claims under state or federal law (or both) can only be released if certain requirements have been met, while still others cannot be released at all—no matter what kind of consideration the employer offers in exchange for the release. In any case, special care is required to ensure that the release is consistent with applicable laws and regulations.

    For example, employees aged 40 or older are protected under the federal Age Discrimination in Employment Act of 1967[i] (the “ADEA”), and its various amendments, including a 1991 amendment called the Older Workers Benefit Protection Act[ii] (the “OWBPA”). These statutes provide specific requirements for releases contained in severance agreements presented to employees aged 40 or older. To be enforceable, releases of ADEA claims must specifically reference the ADEA. Further, they cannot release the employee’s right to file charges with (or participate in proceedings before) the Equal Employment Opportunity Commission, nor can they release any claims arising after the effective date of the employee’s severance agreement. Furthermore, the release must confirm that the employee has been advised, in writing, of the right to consult with an attorney of the employee’s choice regarding the agreement before executing it. The employee must also have been apprised of the right to take at least 21 days to consider the whether to sign the agreement, as well as the right to revoke it for seven days after signing. These are just a few examples; this list of requirements is by no means exhaustive.

    Certain other federal claims likewise cannot be released except under a limited set of circumstances. For example, federal minimum wage and overtime claims under the Fair Labor Standards Act of 1938[iii](“FLSA”), generally cannot be waived or released—although this may not be true in all jurisdictions depending on the facts and circumstances of a case.

    As another example under Ohio law, specifically, employees cannot release claims for unemployment benefits[iv], or (with some limited exceptions) workers’ compensation benefits[v].

    Restrictive Covenants

    An essential restrictive covenant in most severance agreements will generally require departing employees to keep the employer’s valuable information confidential. The best definitions of “confidential information” are tailored to the employer’s specific needs and concerns according to what is customary in the employer’s business and industry. The specific categories of information that the employer intends to protect from disclosure or misuse should be explicitly referenced in the definition of confidential information. For example, certain kinds of employers may value actual or prospective customer lists, while others may value software source code or other valuable technologies.

    Another restrictive covenant, commonly referred to as a “non-compete,” is routinely present in severance agreements. A non-compete prohibits a departing employee’s ability to compete with the employer for a limited period of time and within a limited geographic area. Whether, and the extent to which, a non-compete is enforceable depends on the jurisdiction: not all jurisdictions recognize non-competes.

    In Ohio, courts analyze the facts of a particular case under a reasonableness test to determine whether a non-compete is enforceable. An Ohio employer seeking to enforce a non-compete will have to show that the language of the non-compete: (1) is not greater than reasonably required to protect the employer’s legitimate business interests; (2) does not impose an undue hardship on the departed employee; and (3) does not harm the public interest[vi]. Of course, the meaning of these criteria can change depending on the employer’s industry and the position and responsibilities formerly held by the departed employee.

    In addition to releases and restrictive covenants, severance agreements normally contain a number of other important provisions, any of which may or may not be appropriate depending on the facts and circumstances.

    If you have questions regarding what kind of severance agreement may be appropriate in a given context, you should contact an attorney. If properly drafted, a severance agreement can reduce the risk of post-termination litigation, help protect confidential information, and reduce or eliminate unfair competition. You should contact an attorney for additional information regarding the usefulness and advantages of severance agreements under different circumstances and in different jurisdictions.

    This article is for informational purposes only. It is merely intended to provide a very general overview of some of the reasons why severance agreements may be beneficial or appropriate. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney. If you have questions about your particular legal situation, you should contact an attorney.

    Max Julian is an attorney at The Gertsburg Law Firm. His practice focuses on business litigation. He can be reached via email at mj@gertsburglaw.com or by phone at (440) 571-7541.

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  • Next up: BizConCLE Preview: The Power of Positivity and Diversity in Organizational Teams
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  • BizConCLE Preview: The Power of Positivity and Diversity in Organizational Teams

    Team-focused cultures are all the rage today, but what's the best way to organize such a team at your company? Here's a preview of a workshop session that will examine that topic during this year's BizConCLE.

    Given the team-focused culture that dominates organizations today, it’s becoming increasingly important for companies to put extra thought into how such organizational teams are comprised. More frequently, companies are looking to add diversity in the employees who make up these teams. In fact, a recent HerdWisdom study has found that diverse teams outperform homogenous teams by six times.

    But simply bringing together a mix of people and personalities isn’t enough on its own to guarantee success. This is a topic that ERC Senior Training Consultant Chris Powers will explore in-depth during his upcoming workshop at this year’s BizConCLE. Ahead of this session, Powers took time to preview some of the themes he plans to address and what attendees will walk away with following his talk.

    Stay positive

    At the end of the day, Powers said no one on the team wants to fail. Everyone wants to do their best work and add value. So, with that in mind, he said it’s important that leaders provide a healthy amount of positive feedback to team members.

    This is important because employees who feel appreciated and valued will want to work harder and they will be motivated to get more of that good feeling they experienced.

    Diversity and fresh ideas

    Diversity is also an important element in high-performing organizational teams. Studies have found that diverse teams are nearly twice as likely to be innovative than those that are homogenous.

    Powers said it’s crucial for companies to prioritize diversity in their workforces and on their teams. Otherwise, he cautioned, it’s easy to fall into group think.

    Putting these different personalities and backgrounds together on one team can be a struggle, however. So, how does Powers suggest that companies overcome this dilemma? During his workshop at BizConCLE on Nov. 1, Powers will outline strategies companies can use to ensure everyone on the team is working as one happy, cohesive unit.

    Don’t miss out on this workshop! Register today for BizConCLE by clicking here. And learn more about why this is a can’t miss event by clicking here.

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  • Next up: COSE WebEd Series: Building A Better Workplace with Policies & Procedures
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  • COSE WebEd Series: Building A Better Workplace with Policies & Procedures

    Learn how to build a better workplace in this webinar presented by Elizabeth A. Crosby from Buckley King.


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