Ensuring Compliance When Storing I-9 Forms
Electronically
By
Yonaton Aronoff
In 2004, Congress passed a law allowing employers to obtain electronic signatures on and electronically store I-9 forms. The rules are codified and explained at http://tinyurl.com/2d7p8u4. Employers now have the choice to store I-9 forms in hardcopy, electronically, or both. The law is designed to alleviate the burden of storing hardcopy I-9 forms and contains very specific requirements for employers' transition to electronic storage. In order to ensure compliance with the statute in the event of an audit by U.S. Immigration and Customs Enforcement, employers should be mindful of the following provisions and requirements:
- Employers may convert existing hardcopy I-9 forms into electronic files by scanning and storing legible copies of the forms. The system for storing electronic I-9 forms must be able to produce legible paper copies of the forms and must include reasonable controls to ensure the integrity, accuracy, and reliability of the stored documents. The storage system also must contain inspection procedures, as well as reasonable controls to prevent (and detect) the unauthorized or accidental creation, alteration, or deletion of electronically stored I-9 forms. Finally, the storage system must have an indexing system. Employers utilizing an electronic storage system for I-9 forms must maintain a description (or descriptions) of their storage, form-generation, and indexing systems (and procedures for using such systems).
- With respect to security protocol, access to an employer's electronic storage system must be limited to authorized, trained personnel. The system must include backup and recovery features to prevent data loss. Finally, the electronic storage system should contain an "audit trail," which logs a "secure and permanent record" of everyone who creates, completes, updates, modifies, alters, or corrects the stored I-9 forms. Failure to maintain adequate security features may result in a violation in the event that data is lost or altered.
- The regulation also permits employees to sign I-9 forms electronically (http://www.uscis.gov/files/form/i-9.pdf). Electronic signatures must be accompanied by a form of attestation (so long as the attestation makes clear the employee has read it before signing) and must record the time, date, and signatory. Employers may use a PIN number system or "click to accept" feature for employees to access and sign their I-9 forms, and must document (and produce to auditors, upon request) which of these features is used.
- Employers must document, and auditors may compel production of, their business processes that create electronically stored I-9 forms, modify and maintain the forms, and establish the authenticity and integrity of the forms. Insufficient documentation of these three processes is a violation of the statute.
Traditional Notion of Business Days Gives Way to New
Economic Realities
By
Roy Barquet
As the service sector of our economy continues to grow, so too does the competition to cater to consumer demands for business hours on weekends and holidays. Increasingly, employers are expanding the number of business days and hours they remain open for business. In doing so, they are eroding the traditional notion that business days merely comprise Monday through Friday, excluding weekends and holidays. Catching up to this consumer-driven phenomenon has not come easy for the U.S. Department of Labor (DOL), but a recent decision from the Board of Alien Labor Certification Appeals (BALCA) has compelled the DOL to take note.
The BALCA decision, In the Matter of IL Cortille Restaurant (http://tinyurl.com/3894gt4), concerned a labor certification recruitment campaign conducted by a restaurant to the benefit of its chef. A labor certification is a DOL-regulated process in which an employer demonstrates a shortage of available U.S. workers to fill an employment position currently occupied by a temporary foreign national worker. If the recruitment campaign demonstrates the shortage, the temporary foreign national employee can apply for U.S. residence. One of the DOL regulations that employers must fulfill to demonstrate the shortage of U.S. workers mandates that employers post a workplace notice of the available employment position "for at least 10 consecutive business days." The regulation does not define "business days." Because the restaurant is open seven days a week, the restaurant counted Saturday and Sunday as business days in fulfillment of the regulation.
The DOL denied the restaurant's application because it concluded that Saturdays, Sundays, and legal holidays are not traditionally interpreted as business days. By excluding Saturdays and Sundays from the tabulation, the DOL concluded the restaurant failed to post the job availability notice for sufficient days. The court vacated the DOL's decision, concluding that as long as an employer has employees working on weekends or holidays, those days are business days within the meaning of the regulation.
In reaching its decision, the court rejected the DOL's assertion that its adjudication of labor certification applications would become unduly burdensome if it had to consider an employer's particular days of business rather than a blanket rule that business days are limited to Monday through Friday. The court concluded such a blanket rule is not only inconsistent with the reality of today's economy but would undermine the notice purpose of the posting requirement. After all, the court concluded, many service and retail businesses conduct more business on weekends than weekdays.
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