E-Newsletter

September 2010

Final Rule Regarding Electronic Management of Form I-9 Now Effective

Keith E. Kopplin, Esq.

In late July 2010, the Department of Homeland Security issued its final rule regarding Electronic Signature and Storage of Form I-9, Employment Eligibility Verification. The final rule, which became effective on August 23, 2010, made five minor modifications to the interim final rule issued in 2006. Specifically, the final rule clarified that:

• Employers have three business days to complete Form I-9, not three calendar days;
  
  
• Employers may use paper systems, electronic systems, or a combination of both;
  
  
• Employers are permitted to change electronic storage systems, provided the systems meet the performance requirements set forth in the regulations, including, for example, the capability of producing a reasonable facsimile or copy of the Form I-9;
  
  
• Employers are required to maintain an audit trail of each time a Form I-9 is created, completed, updated, modified, altered, or corrected electronically, but not of each time a Form I-9 is simply viewed electronically; and
  
  
• Employers are only required to provide confirmation of a Form I-9 transaction when an employee requests a copy.
  

Although these clarifications affect virtually all employers, they were made without much fanfare. In fact, only 9 comments were submitted by the general public regarding the interim final rule. By contrast, the proposed rules implementing the recent amendments to the Americans with Disabilities Act received more than 600 public comments.

Employers are required to retain Form I-9 for three years following the date of an employee's hire, or one year following the date of the employee's termination, whichever is later. Electronic management of the Form I-9 process can greatly reduce the physical space required to comply with this retention schedule. In order to take advantage of this opportunity, however, employers must ensure that they are complying with the final rule regarding the Electronic Signature and Storage of Form I-9, including the points outlined above.

If you have any questions regarding this or any other employment or labor law matter, contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.