Navigating I-9s and E-Verify with Beth Evans, Immigration Attorney

Mark Brando (00:00:03):

Hello everybody. Good afternoon. Welcome. This is Ask An Attorney Navigating i9s and eVerify. This is our restaurant business webinar and it's being sponsored and presented by our partner work stream and broadcast by InformaConnect, the parent company for restaurant business. I'm Mark Brando. I'm with InformaConnect and I'll be your host for the session today. Now, before we begin, there are just a few tips for you guys to navigate the webinar console if you haven't joined us before for any programs on this platform. Now this webinar is designed to be interactive, and so to help with that, you'll notice a toolbar at the bottom of your screen with different buttons that work different widgets such as a Q&A panel or live reaction widgets as well. That's on the right side of the toolbar. And throughout this presentation, feel free to share your reactions to the presentation in real time.

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To submit questions for our speakers, you can also use the Q&A widget, and we'll address as many of those questions as we can get to in the time that we have allotted. And the most important thing is that if at any point during this presentation you experience any typical difficulties like the audio going out or if the slides don't advance if there's a lag, most of these problems can be solved by refreshing your browser. So if you're on a Windows PC, that's the F5 key. And if you're on a Mac, that is Control+R. Now, please let me introduce today's speakers. From WorkStream, we have Emily Hancock, who leads their marketing function. And from Jackson Lewis PC, we have Beth Evans. More information on our presenters can be found in the speaker's area of your console. So with all of that housekeeping done, I get to turn things over to Emily.

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Emily, take it away. It's all yours.

Emily Hancock (00:01:48):

Thank you so much, Mark. Hello, everyone. I am so pleased to be here. My name is Emily Hancock. As mentioned, I'm on the marketing team here at Workstream. I have been at Workstream for a little over two years in many different facets. I wish I led the marketing function at Workstream. That would be incredible, but I am not leading that. And I just do a bunch of different stuff at WorkStream for marketing here. And if you haven't ever heard of WorkStream, we are an all- in-one HR payroll and hiring platform specifically built for the hourly workforce. We are headquartered in the Bay Area, but I am in our Utah office. I was born and raised here, so happy to stay home. But enough about me. I'm honored to introduce my guest today, Beth Evans. Beth is an immigration attorney based in Omaha, Nebraska. She represents local and multinational companies in employment-based non-immigration and immigrant petitions.

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She has a wealth of knowledge, and we are so excited to have her on today. Say hi, Beth.

Beth Evans (00:02:59):

Hi, everyone. As Ashley mentioned, I'm an immigration attorney. I work at Jackson Lewis. Our law firm is a national law firm. We have about 65 offices throughout the US, and we exclusively practice in the employment and labor law space on the management side, so advising employers. So within that, we have a subset of immigration practitioners who advise on visa work, but also on the compliance and I- 9 and eVerify side.

Emily Hancock (00:03:30):

Awesome. Yeah, we're super happy to have you today. Thank you so much for joining us.

Beth Evans (00:03:35):

Okay.

Emily Hancock (00:03:37):

Let's talk about our agenda for the day. We're going to chat briefly about I- 9s and e-Verify. We're going to do a little bit of a Q&A, and then we're going to talk about how to handle an audit. And then we'll go into an audience Q&A. So please, if at any time you have questions, concerns, comments, please put them into the Q&A box and we'll be sure to get to them. All right. Without further ado, let's get started. Okay. Understanding the I- 9. Let's talk about something that might not be the most exciting topic in the world, but it's absolutely essential. Form I- 9, any verify. These tools are at the core of employment eligibility in the US. Whether you're a seasoned HR pro or just a restaurant manager wearing a billion different hats and running around all day, you still have to understand how and why these systems are put in place and why it's critical that you stay compliant and avoid any costly penalties.

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So let's start with the basics. What exactly is the I9 and what role does e-Verify play? So an I- 9's main objective is to verify that every new hire is legally authorized to work in the US. Every employer is required to ensure this form is properly completed for each new hire, both citizens and non-citizens. It's important that this form is completed correctly and in its entirety. It's up to you, owner, manager, whoever you are, to ensure that it gets filled out entirely and completely. So let's go over the key points of the I- 9. First, we have the employee information section. So this section is completed by the employee, and this is where they fill out their personal information, such as name, address, date of birth, social security number. They also indicate whether they're or not they're a US citizen, a non-citizen, a lawful, permanent resident, or an alien authorized work in the US.

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Make sure that they don't forget to check the correct box. We've talked to customers before here at Workstream who were quickly going over their employees' I- 9s and just didn't realize that the box was not checked. It can be easy to miss. So you've really got to make sure that that box is checked and it's a huge compliance risk if it's not filled out correctly. This next section is for you, the employer. In addition to providing their personal information, employees are also required to provide identity and work authorization documents such as passports, driver's license, social security cards, work authorization forms, et cetera. You have the responsibility to provide this information to the employee, so you have to make sure that they know about this and they know which documents they need to bring, but it's also your responsibility to physically examine these documents to check for authenticity and then accurately record them on the form.

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And you should consider taking photocopies of these documents to keep for your records because you have to give those documents back to the employee, right? But keeping them for your records is a good idea. And then the final section is where you sign off on the form with your signature, date, and company. Beth, do you have anything to add in this section? Pretty straightforward, right?

Beth Evans (00:07:04):

Yeah. The instructions for the 4x9 are very lengthy if you take them all in consideration. I think it's over a thousand pages if you look at everything that's out there. So if you ever get stuck or have a question and you don't know, I just encourage people to feel free to ask somebody who can help you with that, to get the assistance you need to fill it out.

Emily Hancock (00:07:26):

Absolutely. Ask someone if you don't know, because again, it can be a huge compliance risk. Now, let's layer in E-Verify. What is E-Verify? So E-Verify is a free software provided by the US government that compares information from the I9 form to records held by the Department of Homeland Security and the Social Security Administration. So it's used to actually confirm the employee's eligibility. Why use E-Verify? It's so easy. It's really easy to use. It adds a layer of legal protection and it reduces the risk of hiring unauthorized workers. And it may be required by your state. If it's voluntary for most employers, except in states or cities where it is required by law or if you're a federal contractor. So states that require E-Verify include like Utah, Arizona, Florida, Georgia, and Tennessee. There's a few others. Even more, some states only require E-Verify for public employers or contractors.

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So there are some nuances there. If you aren't sure if your state requires the use of e-verify or what those nuances are, you can find that information online and I encourage you to do so. Even if it is optional for you though, many businesses choose to use it. I mean, like I said, it's free. They use it as a way to just reinforce that compliance and reduce the risk. And it really is so easy to use. All you'd have to do is enter the information located on the I- 9 form into the system and voila. You'll know if someone is authorized to work in the US or not. Beth, what's your experience with E-Verify? Do you recommend that everyone uses it or really is it like a ... I know it's a voluntary thing, but what do you think about E-Verify?

Beth Evans (00:09:26):

I think whether or not we recommend people use it is really dependent on the employer. So if you use E-Verify, you need to make sure that you're being very diligent and you have really good practices in place because that information is seen by the government. So if we are concerned that maybe we're not good at getting our I- 9s done timely, we want to work on that and make sure we get those good practices in place before we start using E-Verify, just because that is something that the government can see so they can see if we're not doing it timely. But generally, it does help to provide legal protections. It can serve as a good faith defense. And I think we're going to talk a little bit more about audits here in a bit. So there are definitely pros and cons. I know that sometimes it depends on the business and how often we're seeing new folks in the role who are administering the I9 and e-verify.

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That can make it difficult if you have a lot of turnover to be compliant with the e-Verify system.

Emily Hancock (00:10:34):

Yeah, absolutely. Great. Thank you so much for your insights. That's so great. Okay. Let's get to our Q&A section. So what's going to happen in this section is I'm going to ask Beth a question and she's going to answer very simple, but we want to make sure that everyone understands the basics. And again, if you have any additional questions, please put them in the chat and we can talk about it later when we get to the section below, but let's get started. First off, what are the most common mistakes you see employers make when completing I- 9s?

Beth Evans (00:11:11):

Yeah. So I think they're ... First, I'm going to say, if people are completing a paper I- 9, we tend to see a lot more errors. When we have companies that are using an electronic I- 9, those systems are designed to help catch some of those errors because they will ... If you start putting in the wrong information, a lot of times it will catch that and tell you, "This isn't right." And so you know you need to put in, maybe you entered something wrong. And so electronic I- 9s tend to have just way fewer errors on them overall. A few things that we think are pretty common errors from an employer side. Sometimes we see a lot of employers who are sort of directing employees what documents to present and it's not always intentionally. I think a lot of us hear like, "Oh, you should have your ID or social security card, bring those documents on your first day of employment." And it's really important that we allow the employees to decide which documents they're providing.

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We should not be instructing them as to what they can provide. So it's a really good practice to make sure they have a list of the acceptable documents. Now, certainly if they bring something in that isn't an acceptable document, you of course can talk to them about what may be and kind of walk through what their other options are. But just on the front end, we want to make sure that we're not telling them what documents they need to present.

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Ashley, you touched on this a little bit when you were talking about section one. This is a pretty common error that employers don't look at section one to make sure that it was completed correctly. So there's a lot of reliance that the employee has filled it out correctly and often they miss parts or they check the wrong box. And again, it's usually not intentional, but it's a lot easier to identify that right when they're doing the I9 or when they're just starting employment versus trying to go back and fix it later on after an internal audit if there's errors. So I would encourage people to just make sure they're looking over that section.

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And then I think the other most common one that comes up is missing the first date of employment or entering the wrong date in that box. There can sometimes be confusion about what first date of employment means. And so for purposes of the I9, what they're looking for is the first date that that point is being compensated for work. So sometimes people, they may have an employee start the onboarding process before they actually start working. And so their HR records may have a different date reflected as the first date of employment than the actual payroll records. So just understanding what that date should be so that you can make sure you're filling that incorrectly. And the last thing is for people who are on a temporary work authorization is making sure that the reverification is done timely. So if somebody has like an employment authorization document that will have an expiration date on it and you should be completing supplement B to reverify work authorization before that expires.

Emily Hancock (00:14:32):

Awesome. Amazing. I actually have a follow-up question that I was just thinking of. It's not on this list, but I do think it might be important for some people. Hopefully that's okay with you. But say we have an employee who doesn't speak English and they don't know how to fill the form out, is someone else able to fill that form out for them or how does that work? Does someone have to be a translator? Is there a way to do it for non-native English speakers?

Beth Evans (00:15:03):

Yes. First, there's one point that is a little bit confusing. There is a Spanish Form I- 9 out there. That is not an acceptable I- 9 for the employer to keep. They need to do the English form. So some people, I mean, you can use it as a tool, but we do see sometimes people have the Spanish version and they didn't do the English version. So really what's best for non-English speakers, you need to do the English version and they can have an interpreter or translator help them with that. If there's an interpreter or translator assisting, they would complete supplement A, where they put their information and sign that they've translated everything. Okay.

Emily Hancock (00:15:46):

Awesome. That's great because I know that's really important. We have several customers who have come to us and been like, "What do I do? I don't know how this works." So I think that's important to talk over. Thanks for answering that question. It's kind of out of the blue, but there we go. Okay. How are I9s handled for rehires? So say you had someone that worked for you maybe last summer and they have an i9 that you technically already have documented. Do they have to redo it? How does that work if you rehire them?

Beth Evans (00:16:19):

Yeah. So there are two options. You can always just do a new I9. That's always an option. And again, depending on how your business operates and what makes ... You'll have to decide what makes most sense for you and your organization or your company. The other option is to use, if they have an I9 that was completed within the last three years, you can reuse that I9, but you would need to do the reverification of work authorization. So they would need to present an acceptable list B or list C document or sorry, list A or list C document showing that they are work authorized and you would complete supplement B.

Emily Hancock (00:17:03):

Okay. Awesome. That's great. All these different forms, it's really good that we're going over this so they know which forms are super important and which situation, because it can be complicated, right? Yeah. Good stuff. Okay. Let's go to the next question. Oh, this is an important one that a lot of people actually don't know. And I thought a lot of people knew this, but I was surprised when I was talking to customers that didn't know this. How long does an employee have to complete their I9 and how long does the employer have to verify that it's correct?

Beth Evans (00:17:36):

Sure. I'm going to talk about it a little bit differently. I'm going to say section one. That is the part that the employee completes. That needs to be completed no later than their first date of employment. Again, that is the first day that they are working for compensation. Employees can complete section one before they start working if there is an accepted job offer. And then for the employer, the employer has three business days from the first date of employment to complete section two. And if you use e-verify to complete e-verify. So three business days means if their first date of employment is on a Monday, we have until Thursday to complete section two.

Emily Hancock (00:18:24):

Awesome. Great. Yeah. Super important to know. Those days are important. And again, I was surprised when I was like, "Oh yeah, three days, that makes sense." But yeah, a lot of people didn't know it was like three days. So that's very interesting to know about. Cool. Awesome. Thank you so much. Next, what happens if I miss that three day deadline? What happens if I do verify on Friday? What happens then, if anything?

Beth Evans (00:18:49):

Yeah. So technically it's a late, right? We completed the I9 late. If you are an eVerify employer, there are dropdown boxes where you can select to provide a reason for that, or you can type in a description as well to explain. If there was a reason that it was late, maybe somebody was waiting, renewing their driver's license and they said they were going to come on Thursday, but then they were sick, so they brought it on Friday. Sometimes there are valid reasons for it. With any I- 9 errors, there are some that you can correct and there are some that you cannot correct. You cannot obviously go back in time and make an I- 9 timely, but there is a statute of limitations that does run. So after five years, the error is no longer ... You can't be penalized for that any longer. I know that in industries where we have a fast turnover, we may not have an employee there for that long, but I think one of the things that's really helpful for employers to do is to do internal audits of their I- 9s and then remediate the errors that they can.

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And if you don't have legal counsel or if you do have legal counsel, there are attorneys who can help you sort of train you on what that looks like. You can take more hands-on approach if you hire legal counsel where they review your I- 9s for you and give you directions. Or you can also do things where you just maybe have some training for your leaders who are completing these and so that they have some better direction when they're doing their own audit internally.

Emily Hancock (00:20:38):

Awesome. How often do you recommend that they do an internal audit, like yearly or more than that, or less than that? How often do you recommend?

Beth Evans (00:20:47):

I recommend once a year, but I know most employers, that's not feasible for them or even good intention. Often that doesn't happen. I think what we're seeing right now, just with the increase in immigration enforcement that we're all aware of and we're all seeing everywhere on the news, a lot of employers have since January really been trying to take a more proactive approach and that's really across all industries, all sizes to just make sure that they're comfortable that if they do receive an audit from ICE, that they've done what they can to be compliant.

Emily Hancock (00:21:24):

Absolutely. That's awesome. Yeah. No, you're right. It's well intentioned to do it yearly, right? But it doesn't always come up. You don't always think about it. As a restaurant owner, you have so much going on and I mean, you're running around all day long, putting out fires all day long. And so you're not always thinking about doing an audit like this because it could take time, right? Yeah. Right? We're going to talk a little bit about it later of how you can use technology to kind of decrease that time, but it still takes effort, right? You still have to do it. You still don't have the time to do it. So yeah, super important. Awesome. Okay. Amazing. Onto the next question. Okay. Can an employee provide a copy? So okay, back up. We were talking about how they had to provide documents for work authorization and identity.

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Can an employee provide a copy of their documents? Say it's like a picture or a photocopy, or do they have to be the physical thing that they give to their employer?

Beth Evans (00:22:32):

So in the restaurant bristles, I'm going to make an assumption that most people are working on site, or maybe all your employees. And so in that case, you need to inspect the physical document itself. There are some exceptions for video inspection for remote employees. There's separate rules, but again, for people who are coming to the work site every day, completing their I- 9, you need to see the physical document. You should hold it, look at it, inspect it, make sure it looks authentic, make sure that it resembles the person before you. And just make sure you see that it's a real document and it's not a photocopy.

Emily Hancock (00:23:16):

Awesome. Yes, absolutely. That's interesting. I actually didn't know that about virtual. I mean, it makes sense if you are working remotely, but you're right. In the restaurant industry, you should be on site. So yes, physical thing is very important. And yeah, just want to reiterate what you said. Expecting it for accuracy and authenticity is important. You can't just glance over and be like, "Oh, you got it. There you go. " You got to actually look at it to make sure you're compliant. Awesome. And then this is our last one in this section. What is a tentative non-confirmation result from E-Verify? How do I respond to that?

Beth Evans (00:23:58):

Sure. So if you use E-Verify, and this is just a little context for people who maybe don't, you submit the information and if they can verify work authorization, you get a result back that says that they're verified. Occasionally, you may get a result back says that they are not verified or not authorized to work, but the in between of that is getting a tentative non-confirmation. And what that means is that there is a mismatch between the information that was input and either Department of Homeland Security or Social Security Administration. So what employers are supposed to do, and if you are an verified employer, they have resources and training on this, but you print out the tentative non-confirmation, you give it to the employee as soon as possible, let them know that this happened. And then the employee has 10 federal working days to decide whether or not to take action.

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So if the employee decides to take action, that means they're either, maybe there's something wrong with their social security number, they're going to the social security administration office, they're trying to resolve the issue. And if they do that, then you may see a case update and e-verify.

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Sometimes they will list the cases in continuance, meaning that it maybe hasn't been resolved, but it shows that there's action taking, and then you will get a final result, either confirmation of verification, or a final non-verification. If an employee chooses not to respond, then they should be terminated because that's essentially, they view that as the same as acknowledging that something that they provided was not correct or accurate.

Emily Hancock (00:25:54):

Interesting. So interesting. Okay. Amazing. There's so many great questions coming into the chat right now from our audience. I want to answer them now, but I would love ... We're kind of going to have our own section of the end for to answer questions. So we may come back to this topic, but let's move on to the next topic. And then again, we'll come back when we get to the question portion. Please keep sending them in. Also, everyone in the audience, please. This is so great. And I know that this stuff is important and I know you have questions. We'll try to answer as many as we can, as many as we are able and ... Yeah. Okay. Let's move on. Thank you so much for answering those. That's so great. Okay. How to handle an audit? Because this is happening. I've talked to a few customers.

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One customer that I'm really close with, he kind of has talked about his experience with a huge audit that came through, and it was a very big deal. And I can talk about it later when we get to documentation portion, but I just know that this is happening, and so it's always important to be prepared. So let's talk about how we can be prepared.

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What typically triggers an audit?

Beth Evans (00:27:15):

It can be a number of things or really nothing. So sometimes an audit may be triggered if there was something reported to the government. Occasionally we see people who work inside a business and they think that they are hiring undocumented people. They may tell the government, "Hey, blah, blah, blah." Or these people have fake documents. It could be something like that. It can also be random, and I don't really mean truly random random, but there are certain industries that they target where the data shows that there tend to be higher numbers of undocumented workers or unauthorized workers. And so any type of certain industries like construction, we see hospitality, those can be staffing agencies tend to have higher numbers of audits just by the industry that you are at.

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It can also result if you had a prior audit. Sometimes they will come back if there were compliance concerns and they want to see now if you are doing better. If you are an e-verifier employer, if you are non-compliant and E-Verify, sometimes that can trigger an audit. They have started sending notices to E-Verify employers if they see that there are things in their E-Verify account that they should address. For example, I had a client who had seven tentative non-confirmations, which they never finished out. So they told them and said, "Hey, you need to do this. " And so they're trying to help employers sort of get compliant with E-Verify before they just do the audit, but if they notified you and then you didn't do it, they will probably come audit you. So some of those things, what we're seeing in ICE enforcement as well is they are identifying people who they believe have used fraudulent documents and kind of using that as a means if they identify somebody that works at your company or your restaurant, they may use that as a reason to come in and inspect your I- 9s because they're trying to gather additional evidence against that person.

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But then again, now it's all of our I- 9s they're looking

Emily Hancock (00:29:55):

At.That's deep stuff.That can be really tough. And And it triggered something in my mind. One thing we really talk about a lot at WorkStream when we're talking about compliance is being proactive instead of reactive. If they really are sometimes random or just can come up seemingly random, making sure you're actually prepared for it instead of scrambling to figure out where are all my I- 9s? Are they all correct? It could save a ton of time, a ton of stress if you're just a little bit more proactive about making sure you're compliant with ... Even further than just I- 9s, all labor laws and things like that. So yeah, being proactive versus being reactive so that when this does happen, you are prepared.

Beth Evans (00:30:54):

Sometimes we also see audits triggered by if there was a different type of audit. So maybe child labor or there's concern that you have minors that are working later than they're supposed to be in whatever state you're in. Sometimes then that they are like, "Okay, well we did this. Now we're going to also audit your I- 9s." So sometimes we see that kind of cycle happen as well.

Emily Hancock (00:31:18):

Yes. Actually, that's such a great point. My customer I was talking about earlier who had an audit, the reason for the audit, the reason why it happened was because they were employing ... I don't know if it was like ... I don't want to speak for them, but I know that they were employing their family members without them actually being employees, if that makes sense. They were just using them as workers or something. It was very interesting. He wasn't the one that did that, but the brand, the company, whatever, was the one that did that. And so all locations ended up being audited because of that reason. So yes, it's very interesting. It can come up for totally different reasons. And it could also even be triggered by another franchisee or another business owner or corporate or someone else. And you also have to be audited because of that reason.

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So it's always, again, very important that you stay proactive in this situation. So

Beth Evans (00:32:29):

Should we talk a little bit about being proactive?

Emily Hancock (00:32:31):

Yeah.

Beth Evans (00:32:33):

Okay. So one thing I think every employer should be doing in these times is having protocols in place so that if ICE or any officer shows up at your establishment, there's some guidance given. So whether that's your hostess sitting at the front desk or your managers that they know who they should get and bring to the front. And so just making sure you have that, even you don't have to give them the full training, but we don't want officers just wandering in, especially if it is ICE showing up to RAID, they need to have a warrant and certain things. And so just having a little bit of guidance for your first contact people who are standing at the door so that they're not just put off guard, because it can be very intimidating if I shows up, even if it's to inspect the I9s or if it's for other reasons.

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So making sure that they have a little bit of training and comfort. And then the other thing with I9s, again, which we talked about a little bit earlier, is completing an internal audit of your I9s and then remediating the errors that you can.

Emily Hancock (00:33:48):

Great advice. Thank you. That's awesome. Amazing. Yeah. Making sure that your staff is prepared for if that happens, because it can be pretty heavy. It can be tough. And so it's important to have you prepared, obviously, but yeah, helping your staff be prepared. And for that point person to know what to do in that situation is super important. Great. What do I need to provide in an audit? What are they usually asking for? Are they asking for additional items out of the I9 or what exactly should I be providing?

Beth Evans (00:34:22):

Yep. So if you receive a subpoena for documents from ICE in an I9 audit, they will list the documents that they want you to provide. It's not always exactly the same. We have regional centers that sit out of and some are more aggressive in what they ask for than others, but typical things that you obviously would be included are going to be things like all of your I- 9s. I- 9 documentation, if you retain copies of documents, e-verify records if you are an verify employer, payroll records, how often they want a list of employees and their dates of hiring for dates of employment. So things that just all kind of align. Sometimes they ask for business documents like a business license to make sure you guys are operating legally and all those sorts of things as well.

Emily Hancock (00:35:21):

Amazing. Awesome. Great. Let's go to the next one. What kinds of penalties or fines can I face for I- 9 errors?

Beth Evans (00:35:32):

So there are different types of fines and penalties depending on the errors. High level, what happens in an I- 9 inspection is they come in, they request documents, employers have three days to turn over documents, and then they review everything. They will tell you, then you ... Well, if your I- 9s are perfect, you'll get a letter from clients saying, "Great, you're so wonderful. You have the best I9s." But more likely what happens is they will identify technical errors and they will give you 10 days to make those corrections. And so then you make those corrections. They may also identify suspect documents or concerning documents where they believe potentially either the employee provided documents that belong to somebody else or the documents are not real. And in that instance, employers can talk to the employee and if they have additional evidence to submit, they can submit that to ICE to show that they're authorized to work.

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And then after those steps get done, they will issue essentially a finding. So they may say like, "Hey, this is a notice of technical or procedural failures." They may give you a warning notice for substantive violations saying that these are substantive violations that we found. Again, you can't correct substantive violations, so you're not going to be able to remediate that, but there will be an expectation of compliance going forward. So they may tell you you need to do training or provide other instructions. And then final thing is they can issue a notice of intent to fine. And again, it's really helpful if you have legal counsel involved with this, if you are able to access somebody to assist you, because there is an opportunity often to negotiate those fines. And so having somebody who has the knowledge to deal with these investigators and understand really what their pain points are can kind of help you negotiate those fines down.

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They will also look at other things. They basically review the totality of the circumstances. So how many errors there are, what those errors are, does it look like you're acting in good faith? Does it look like we are engaged, or on the other hand, engaged in a, they call it pattern and practice of hiring or continuing to employ people who are unauthorized. So the lowest end of a penalty is between $288 to about $2,800 for errors on the form, the paper form. But on the highest end, if they think that again, you're a bad actor and engaging in fraud or criminal behavior, there can be criminal penalties where they can bring criminal charges against the employer and the people involved with the I9s.

Emily Hancock (00:39:01):

That's a lot. That's a lot of risk, I guess, going into that for sure. Awesome. Well, I want to go to the next one just because I want to make sure we get to all these questions that all these amazing audience members are put in. So we'll just move on to the next one really quick. It's our last one. You kind of already went over it slightly, but let's just dive into it a little slightly deeper. What do I do if I discover a mistake? So maybe this is before maybe an audit happens and maybe you're doing an internal audit and you do discover a mistake. What are the steps? What do you do?

Beth Evans (00:39:41):

So it depends what the mistake is. If it's something that we ... If there's an error in section one, maybe our employee listed their first name as their middle name and their middle name is their first name. You can have the employee come in and they can correct that. But in section one, the errors have to be completed by the employees. If there are errors in section two, the employer can make corrections. How you do that will depend on whether you have a paper I- 9 or an electronic system. And if you're using an electronic system, that will vary from one system to the other. On paper I- 9s, it's hand crossing out the error, writing the correct information, dating an initial. But when you're in an electronic system, there are electronic audit files. So different systems have different ways in which you can remediate those errors.

Emily Hancock (00:40:41):

Amazing. Thank you so much.This has all been so great. Again, we've had a ton of questions come in, which I'm super excited to get to. But before we do, just on the topic of audit, let's talk about the key to compliance, in my opinion. Documentation. I know documentation is obvious, and maybe it sounds tedious and time consuming and a little boring, but luckily there are tools and best practices out there that can really help with that. So let's talk about it. Documentation tips. First, making things digital. Gone are the days that everything needs to be physical, right? So there is the option to have digital I- 9s.

(00:41:26):

I've heard some customers who do think that it is best for them and they like having physical copies as well as the digital ones, and that's totally fine too. But keeping things digital means that say an audit is coming through and you're like, "Well, I only have a couple days to sift through all my filing cabinets and try to find all these I- 9s and all these documents that I need." Or you can have it all digitally and it's just easy to find them and download them and print them out if needed. It's an easy way to stay organized and the ability to access your documents right away is also really important. You really just don't need to waste that time trying to dig through physical papers and then having the risk of losing papers. It's just having things digital really is helpful in this circumstance.

(00:42:20):

Using a system that allows you to be all in one, like a cloud-based system, it just allows the data to be all connected. So this might be further in a little bit more like hiring and onboarding processes, but moving that data back and forth between applications is a surefire way to make sure that you encounter problems and misenter information. And it's just really easy to do that without even knowing. With an all- in-one system, you don't have to worry about it. You'll enter information one time. Again, this is a little bit more of onboarding and hiring information, but you'll enter that information one time and it transfers over to payroll. It transfers over to everything that you need. It's all there. Mobile friendly, it's no secret that this is the digital age. Everyone is on their phones these days, especially this main generation that you're hiring right now, the Gen Z.

(00:43:11):

I know many people that would rather not apply for a job than answer a phone call. It's crazy. Sounds silly, but seriously, some people would rather not take the job than go in person and to fill out all this paperwork. It does happen. So why don't you meet them where they are?

(00:43:29):

Allow applicants and employees to not only fill out paperwork such as their I- 9s and other forms, but also schedule interviews and more all over their phones. Again, remove that barrier where you can, and it really just makes everyone's lives easier. And another reason why I think mobile friendly is important to you as business owners and managers specifically is you are rarely sitting at a desk, right? Nor do you have the time to sit at a desk. Having everything at your fingertips as you're running around and on the go just allows for more flexibility. And then you can access all of your documents that you need wherever you are. And that leads us nicely into our last tip, automation, automate wherever you can. Really, time is money in this industry. How would you feel if you could save 10 plus hours a week on these hiring and onboarding tasks?

(00:44:26):

That time really is a reality when writing job postings and scheduling interviews and sending out documentation and more are all completely automated. So I'll say it again. Automate, automate, automate, wherever you can. Okay. This is the part I'm really excited about. I would love to get to all these questions. There's a bunch, so we'll try to get to all of them before time is up, but I thank you so much for everyone for submitting questions and let's do it. Let's do it.

Beth Evans (00:45:05):

Actually, there's a few sort of recurring themes in the questions, so I think I'm going to address those. One thing we're seeing is about E-Verify and if I move to E-Verify, do I9 people? Do I have to re-verify existing employees? Every employee when they are hired, they should only complete the I- 9 one time. So we don't ever have them do a second i-9. That is not allowed, so don't do that. If you start using E-Verify, once you enroll, it's every person you hire from that day forward that goes through E-Verify. We do not go back to existing employees and run them through E-Verify. So it's just from the point in time when you enroll forward that you would run employees through E-Verify. So people have more questions about those two things. I just saw them in quite a few of the questions.

Emily Hancock (00:46:05):

Yeah, I was going to say. Yeah. I'm trying to sift through them just to see, is there any other reoccurring things that we can address? Any double questions that are up? Let's see. Oh, you know what? Can we go over one more time, first date of employment versus date of hire? Can you just one more time, just say what the difference is and what needs to be included on the I- 9? Yeah. Let's just go over that one more time.

Beth Evans (00:46:39):

Okay. So different employers, what they tell me is how they record date of hire is the date that sometimes they make the hiring decision, right? So what is required on the I- 9 is first date of employment. And first date of employment means the first day that they are going to be paid. So if you have onboarding where they are paid during the onboarding, then that's going to be their first date of employment. If they're going to maybe just complete section one of their I- 9 and maybe fill out some other paperwork before they show up for maybe their first shift, and they're not being compensated for that time, then that does not count as first date of employment. It's the first date that they show up for their first shift, that would be the first date of employment.

Emily Hancock (00:47:36):

Okay. Amazing. Okay. I just wanted to clarify that really quick. You got two questions about that, so I just wanted to reiterate that because it is important. Oh, I think this one actually kind of segues into this question a little bit, but what should be noted on the I- 9 if the employee worked less than three days and did not provide documents before that separation?

Beth Evans (00:48:05):

So you would just annotate that, or depending again, how your system works, you can also just write a little memorandum and attach it to the I- 9. You just want to make sure you have a record of what happened so that when you're audited and you want to date it, the date that that occurred. So ideally we're doing it in real time and not three years later when we're going to do an internal audit, but just document it and make sure that it's recorded so that if your IDs are audited, the investigator can see what happened.

Emily Hancock (00:48:40):

Cool. Amazing. Okay. Awesome, awesome, awesome. Trying to keep looking here. We're getting more come in too, so I'm again just trying to see what we got here. Let's go back to when you were talking about auditing and having audits coming through, and it's always best to consult a legal counsel. Do you recommend that a legal counsel be established prior to these audits or is it too late to find that council during or after an audit? What do you suggest for these business owners as far as having that council available to them?

Beth Evans (00:49:30):

I would encourage people, again, every business is different, but if it's feasible for you to engage with council beforehand, it helps them to do a few things. As lawyers, I know at our firm, we're a very big firm, so we always have to run conflict checks. And so if we're trying to do that urgently while we're also working on an audit, that is not ideal, but it also allows us to know, understand your business, learn about you, what your employees workforce looks like. And we can do some training or establish sort of protocols with you so that you know if this happens, hey, I can call Beth. Or my firm, I would always have a backup if I'm out of the office. So you know that there's somebody available. We do have employers that call us sometimes in real time when it happens that have not engaged prior.

(00:50:33):

And the biggest issue that we sometimes run into with them is they may have already done things in response to the audit that they maybe should not have done. And so if you don't have council and you get an audit before you take any action, if you're going to engage council, engage them before you do anything, just because there are certain things that we can't undo if you've done them.

Emily Hancock (00:51:06):

Yeah. Makes sense. No, that's great. Great advice. Okay. Amazing. Let's see. Do we need to make copies of documents if they're filling out the I- 9 digitally? How should that work? Yeah. Do you need to make copies of it for your records or is it okay to just fill out the form and that'd be good?

Beth Evans (00:51:36):

So there are a few states and cities that may require you to retain copies of documents. So you have to know what your requirements are, where you're located. But if you're not required to maintain copies of the I9 documents, then you don't have to keep them, but employers should generally just have a consistent practice. So if we are retaining copies of I9 documents, we should be doing that for every new hire. And if you are using an electronic I9 system, most of them will ... I believe all, I can't speak with 100% certainty, but a lot of them will have an option for you to upload those so they're in the system with the I9. So it's kind of all together for that employee.

Emily Hancock (00:52:23):

Awesome. Awesome. Awesome. Awesome. Okay. Amazing. Let's just do maybe like two more questions. So if an audit does come through and that's happening to you, are you required, especially in the states that maybe it's not required, but should it be best practice or are you then required to use e-Verify after that happens? Say an audit happens and there are a few mistakes. Is there a requirement to use e-Verify after or does the law still stand depending on your state? Does that make sense?

Beth Evans (00:53:05):

Yeah. I don't know that I've seen them require E-Verify, but they may strongly encourage it depending on, again, the severity of compliance. So most of the time, most employers are not going to be in that bucket. If you're doing I- 9s, you're trying to do them correctly, you are trying to get them done timely and we're mostly compliant, but there are certain officers in various jurisdictions that are more aggressive than others. And so I know in Nebraska, we have pretty reasonable investigators and we have good relationships with them. So our experience may be different than if we're working with somebody in Atlanta or somewhere else where they have different investigators and their offices sort of have different practices.

Emily Hancock (00:54:10):

Awesome. Okay. Amazing. Let's just do one more question. Let's see. So I know that you mentioned this, but I think it's something that we need to reiterate and maybe clarify slightly. But if a new hire's hire date, maybe say is Friday, when is that I9 verification due from by the employer? You said it was three business days, so that does not include the weekend. So say it's Friday, would it be then like Tuesday or Wednesday?

Beth Evans (00:54:46):

So it's three business days, and so that depends on your operations. If you're open seven days a week, then your business day will be Friday, Saturday, Sunday, Monday. So Monday would be the third business day. If you're, maybe you're closed on Sundays, so then it's Saturday, Monday, Tuesday. So it depends on your business and what days you're operating.

Emily Hancock (00:55:13):

Okay. That's great to know because yeah, I guess in my mind, I work white collar corporate, so I have the weekend off, but yeah, you got to remember these restaurant owners, these businesses, they don't always have the weekend off. Sometimes they're open seven days a week, right? Okay.

Beth Evans (00:55:32):

Some places might be closed like a Monday or Tuesday. I see that. I know here locally some restaurants are only open Wednesday, Thursday, Friday, Saturday.

Emily Hancock (00:55:43):

Yes.

(00:55:44):

Okay. Great clarification. I love it. I know we had a bunch of other questions, but I know we're running out of time and I just want to just end quickly for all of you. Thank you so much for submitting questions. We've had a few that asked if this was going to be recorded and provided. Yes, it will. So look out for that. But I do want to talk briefly about Workstream. Who are we? Why Workstream? Why we are here to help? Why we do what we do? Today's software, we truly don't feel like it's built for the hourly workforce. Again, I work in an office and so it's just very different from the hourly workforce. We're desk bound. We have a fixed monthly salary. There's no tipping, no labor ... I mean, there's labor laws, but they're not as complex and difficult to understand. There's a little bit like a lower turnover, whereas the hourly workforce is totally different, deskless, pay changes depending on the hours worked.

(00:56:52):

Tipping is so complicated. Again, labor laws are complicated. States have their own laws. Some people are eligible for benefits, some aren't. There's just a lot of complexities to the hourly workforce, and we believe that there is not a solution out there built specifically for those complexities, and that's what we're aiming to do. That is what we are super passionate about, and we truly believe that that deskless workforce deserves better.

(00:57:23):

And we believe that we're built different. We have hiring, HR, engagement, time and scheduling, payroll. We have benefits. We have some new modules coming up where there's training modules or task management. Anything that you need from hiring, onboarding, payroll, HR, time and scheduling, all of it is in one system.

(00:57:46):

Again, same thing, hiring, HR, engagement, time scheduling and payroll kind of encompasses all that we do, but there's a lot of different features. We have an AI feature, compliance feature, all sorts of things to help you really scale and bring those people processes all under one roof and save you lots of time and money because essentially I know that that's important to the people in this industry. And so we're here to really help and listen and just help you do business, help you with your every day. That's what we're here for. So, okay. I just want to say thank you. Again, my name's Emily Hancock. I'm with WorkStream. If you are interested in seeing a demo, please scan this QR code and I can have someone from our team get with you. And I just want to thank Beth one more time for being on with me today.

(00:58:44):

Seriously, you were amazing. I know everyone, it's very clear from all these questions that we were getting that this is a really important topic and people need help with it. And so we're just so, so happy that you are willing to jump on and guide people and help us out. So thank you so much.

Beth Evans (00:59:05):

Of course. We know that there's been lots of questions, so we see it every day. Again, I'm Beth Evans. I'm with Jackson Lewis. You can find me online at Jackson Lewis if you have additional need for questions.

Emily Hancock (00:59:21):

Amazing.

Beth Evans (00:59:22):

Yeah.

Emily Hancock (00:59:23):

Okay.

Beth Evans (00:59:23):

Thanks, Ashley, for having us. Yeah.

Emily Hancock (00:59:26):

Thank you so much, you guys.

Mark Brando (00:59:29):

All right. Well, ladies and gentlemen, this concludes our presentation of Ask An Attorney, Navigating I9s and E-Verify. I want to thank Beth and Emily again so much, and thank you to WorkStream for sponsoring the webinar and putting it together today. Last thing that I'll say before everybody signs off is that if you look at the console at the bottom of your screen, there is a webinar survey widget. We ask you to fill that out because if you tell us what we're doing right, what we could improve, that'll help us serve all of our audiences better in the near future. And As Emily said, this event was recorded and it'll be available to view on demand within about 48 hours. So if you registered and attended for the webinar today, you'll receive an email with a replay link and you can view it again. You can share it with the rest of your colleagues.

(01:00:16):

So that should be coming again in about 48 hours. So on behalf of Restaurant Business and Informa Connect, wanted to say thank you for attending today. Please join us for future webinars and have a great rest of your day. Thanks very much.

Emily Hancock (01:00:29):

Thank you. Bye everyone. Bye.