Schwartz Hannum PC
Bookmark and Share
 

Legal Updates

To I-9 Or Not To I-9: When Must Employers Re-Verify Seasonal And Other “Rehired” Employees?

With the summer season approaching, it is important for employers to understand when they are required to complete new U.S. employment authorization forms (known as Forms I-9) for individuals returning to work after breaks in active employment, such as seasonal layoffs.

As outlined below, an employer should first determine whether an individual qualifies as a “rehired” employee. If an employee falls into this category, specific rules apply as to when a new I-9 must be completed.

Background

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to complete Forms I-9 for employees hired after November 6, 1986, in order to verify their U.S. employment authorization. As part of this process, an employee must present documentation (such as a passport) establishing his or her identity and right to work in the U.S.

Generally, an employee must complete Section 1 of the Form I-9 on or before his or her date of hire (defined as the first day the employee performs work for wages or other remuneration). The employer then has three business days from the date of hire to examine the employee’s documentation and complete Section 2 of the Form I-9.

When Is An Employee “Rehired”?

For an employee returning after a break in active employment, the threshold issue is whether he or she has been “rehired,” for Form I-9 purposes. If, at all times, an individual retains a reasonable expectation of resuming employment, he or she will not be deemed to have been rehired, despite an interruption in active service.

For example, when an employee returns from an approved leave of absence (such as parental, personal, or disability leave), the employee is generally considered to have had continuous employment. The same is true of an employee who regularly works season-to-season or returns after being laid off due to an anticipated, temporary lack of work. In such situations, the employee is not deemed to have been “rehired,” and the employer need not complete a new Form I-9.

While there is no bright-line rule for determining whether an employee has been “rehired,” the following factors should be considered:

  • Was the individual employed on a “regular and substantial” basis, as compared to others who worked in a similar capacity? (This tends to indicate a reasonable expectation of continuous employment.)
  • Did the employee comply with the employer’s established policies for leaves of absence (if applicable)?
  • Does the employer have a track record of recalling laid-off employees within a reasonable time?
  • Was the position formerly held by the employee taken permanently by another worker?
  • Has the employee sought or obtained unemployment or other benefits inconsistent with an expectation of continuous employment?
  • Did the employer indicate to the employee that he or she would likely be able to resume employment within a reasonable time?

When Is A New I-9 Required For A Rehired Employee?

If an individual does qualify as a “rehired” employee for Form I-9 purposes, then the following rules apply:

  • If an employee is rehired within three years of the date when his or her previous Form I-9 was completed, the employer may rely on that previous form, so long as that prior I-9 shows that the documentation the individual provided to establish his or her identity and work authorization is still valid. However, the employer should update Section 3 of the previously completed Form I-9 to reflect the date of rehire.
  • By contrast, if an employer is rehired within that three-year period, but the documentation the employee provided in support of his or her previous Form I-9 has expired, then the employer must request current documentation to re-verify the individual’s employment eligibility. In addition, the employer must either complete Section 3 of the previous Form I-9 or complete a new Form I-9, if a new edition of the form is available or if Section 3 has already been used.
  • Finally, if an employee is rehired more than three years after the date when his or her previous Form I-9 was completed, then the employer must request current documentation from the employee and fill out a new Form I-9.

E-Verify And Rehires

Employers that participate in the federal E-Verify program also need to consider whether to create a new E-Verify case for a rehired employee.

If a rehired employee’s Form I-9 lists an expired identity document, and an E-Verify case has not previously been created for the employee, then an E-Verify case should be created.

On the other hand, if a rehired employee’s identity document has expired, and an E-Verify case exists for the individual, the employer may either (i) complete Section 3 of the Form I-9 (and not create a new E-Verify case), or (ii) create a new E-Verify case.

Finally, if a rehired employee’s identity document is still valid, and an E-Verify case exists for him or her, the employer need not create a new E-Verify case. (Conversely, if an E-Verify case has not been created, the employer should do so.)

Recommendations For Employers

To ensure compliance with these requirements, we recommend that employers do the following:

  • When terminating employees for economic reasons (such as seasonal closings), clearly indicate to them the employer’s expectations as to potential future employment;
  • Carefully evaluate the specific circumstances to determine whether an individual qualifies as a “rehired” employee;
  • If so, determine whether a new Form I-9 and/or E-Verify case is required, under the rules detailed above; and
  • Consult experienced immigration counsel with any questions as to how these requirements apply.

* * *

Please feel free to contact us if you have any questions about your business’s Form I-9 obligations. We routinely counsel employers on these issues and would be happy to help.