I-9 Relation Extant beyond Assignment Term | DCR Workforce Blog

I-9 Relation Extant beyond Assignment Term

Hiring an undocumented worker carries civil and criminal ramifications which carry clear liability. Justifiably, the paramount concern for homeland security brooks no violation which could provide malicious persons with official access to any premeditated target. It may be recalled that 4 illegal immigrants with false documents were found working at the Avondale Shipyard, with 26 others working at Pascagoula where U.S. Navy ships are built or repaired. This makes it easy to understand why steep fines and other penalties are brought to bear on all those who fail to e-Verify new hires and file an I-9 or for making even simple mistakes, in doing so.

Immigration reform and enforcement policies are liable to change at short notice and their effect on the employment verification process and managing Form I-9 need employers to be permanently on the alert, if they wish to avoid exposure. Fines accrue for filing an inaccurate or incomplete return, for not filing any and the threat of ‘business death penalty’ or revocation of business license loom large for hiring someone who is ineligible. Using the electronic submission for I-9 has many positive benefits as it helps to streamline the answers and to eliminate inadvertent mistakes.

DoJ’s Clarification:

What do employers do if they offer seasonal employment to temporary workers, who may or may not remain on the rolls for prolonged periods? This question was considered in U.S. v. Ketchikan Drywall Services, the DOJ’s Office to determine whether workers employed for the drywall installation, as seasonal and temporary employees, were terminated at the end of the assignments. The decision in this case has affirmed the stand taken by staffing firms all along.

The Department of Justice has provided guidance advising employers that I-9 relationship does not end with the assignment and can be kept extant. If the employer were to re-hire the same (seasonal or temporary) employee, they could just claim it as a continuing relationship provided certain determining factors are available. Temporary layoffs do not affect the relationship too, if the work consists of seasonal assignments or multiple projects, or the employer has a habit of re-calling previous workers, or has told the workers that they would be re-called to work. This actually helps employers to lessen their workload and provides an exemption to them from filing another I-9 or from submitting a filled-in Section 3 of the previous I9, as required hitherto.

Implications:

This case establishes that staffing firms will not need to update or complete a new Form I-9 for a temporary employee who starts a new assignment after a break period if:

  • The relationship was not explicitly ended or terminated by either party (as with the employee being fired, or the employee informing the staffing firm of an unwillingness to return for another term or assignment, or new project,
  • Staffing firm can establish a pattern to prove that a period of inactivity between assignments is normal practice and does not imply a termination,
  • If the inactive period does not exceed what is termed as a normal break between assignments.

This judgment validates the claims of staffing firms which have never received fair audition so far and helps to reduce the burden of filing I-9s for re-hires.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.