In HR Dive’s Mailbag series, we cover HR professionals’ questions about all things work. Have a question? Send it to [email protected].
Q: If an employee was hired a long time ago, must they have an I-9?
A: Yes, unless they were hired before Nov. 7, 1986, according to Bruce Buchanan, senior counsel at Littler.
If an employee was hired before that date, they’re grandfathered in, he explained during an Aug. 11 webinar, in response to an audience question. But it’s unlikely employers have many workers approaching a 40-year anniversary at the company, he said.
“It’s going to be very rare that you’re going to be able to grandfather anybody in. I’ve been doing this 19 years. It was a lot more common 19 years ago than it is today.”
Still, Buchanan said he has encountered an employer or two in that situation.
The question came during a discussion of U.S. Immigration and Customs Enforcement targeting certain industries. “Especially the hospitality industry and — at least in my workings — the restaurant business has [an] incredible number of notices of inspection,” he said.
Employment law attorneys have generally suggested that HR professionals concerned about missing or incorrect Form I-9s consider a self audit — especially one conducted under attorney-client privilege. It’s “well worth it,” Buchanan said.