Specifically,
the Court ruled the employer’s failure to fill out parts of an I-9 form was a
violation, even though documentation containing the information required on the
form was attached to the form. The employer argued "it fully complied with
its statutory obligations by copying and retaining its employees’ verification
documents together with partially completed I-9 Forms, because the documents
showed the employees’ eligibility for work and the forms had been signed."
(2013 WL 3988679, *3.) The Ninth Circuit disagreed, holding as follows:
[C]ompliance requires that the relevant
information from the documents be transcribed onto the I-9 Form, regardless of
whether copies of the documents are retained. 8 C.F.R. § 274a.2(b)(3) explains
that, while copying of documents is not required, it is permitted; it also goes
on to explain that the copying and retention of the copy or electronic image
does not relieve the employer from the requirement to fully complete section 2
of the Form I-9. ...
[Ketchikan Drywall Services] argues
that it is senseless to require employer and employees to waste the time
necessary to transcribe information onto I-9 Forms when that information is
already available on an attached copy of the relevant document. But requiring
that the parties take the time to copy information onto the I-9 Form helps to
ensure that they actually review the verification documents closely enough to
ascertain that they are facially valid and authorize the individual to work in
the United States. The I-9 Form also provides concrete evidence that such
review took place. Further, aggregation of all of the relevant information onto
one form allows for easier review of that information by ICE. It is neither
arbitrary nor capricious to require that employers actually complete their I-9
Forms.
(2013 WL
3988679, *3-4 (internal quotation marks, brackets, and ellipses omitted).)
A seeming triumph of form over substance to me, but then again, I'm not the person wearing the robe on
the bench hearing all of the evidence. Regardless,
this is a cautionary tale to all you employers out there: make sure all of the i’s are dotted and t’s
crossed on your federal employment verification forms, or you may pay the price.Questions? Concerns about how pending legislation or litigation may impact your business? Comment, or send me an email, and let’s discuss.
Nothing in this blog is intended to create an
attorney-client relationship. This
article is intended to provide a general overview of the current status of the
law for informational purposes only, and is not intended to constitute, or
serve as a substitute for, a professional legal consultation. Laws change every day; please consult an
attorney regarding the current status of the law, and how the law affects your
specific circumstances. Thank you.
