I-9 forms

bird · September 2003

I read in the recent Mississippi Employment Newsletter that keeping I-9 forms in the employee personnel file was ok...this is opposite of what I remember learning. I understood I-9's are to be kept separate but may include all employees in same file. This was under the topic titled "Access to personnel files"
Thanks
Robin

HR in CA · September 2003

The reason to keep them separate from the personnel file is in the event of an I-9 audit you would not want to hand over the personnel file to the auditor. The auditor may see other issues within the personnel file and alert the appropriate agency to come and audit you. When the DOL audited us I presented them with a binder of I-9's for current employees and one with terminated employees, both alphabetical. I received high praise from the auditor, as it made it quick and simple for her to quickly look to see we were in compliance.

Peyton Irby MS · September 2003

there is no legal requirement regarding the location for keeping the I-9 files. most employers do keep them in separate files for ease of access in case the INS shows up to check them. the newsletter comment was designed to remind employers that they must be kept.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

Pork · September 2003

I concur; for our purposes we keep the I-9 in the personnel file. I t automatically goes to the terminated file drawer with the file. Putting them in one I-9 file has its advantages for annual personal audits and updates and any INS audit. I believe, I have been told that there are 5 INS persons covering MS, LA, AL, and a portion of TN. What are your chances in this big pool of ours for there to be a walk-in Federal or State audit of your office without some reason. If you are like PECO Foods you probably need to have a seperate file and a copy in your personnel file. Just make sure you maintain both files, add new ones, and extract the old and terminated report of record.

PORK is better in Mississippi!

PORK

mwild31 · September 2003

I thought that INS audits were very rare as well - almost an urban myth - but they do happen. Two weeks after I started in this position, we had an audit ( a first for the company as well). I've done both, I-9 in the file or, as I do now, in a seperate binder. I personally like the binder system - as I can keep all of my INS correspondance and other such information in there as well. It's a choice you or your employer makes. :-)

System · September 2003

Even Peco Foods had no idea they would be targeted, I assume. If indeed we knew when we would be audited, what a heyday we would have with the filing system. Much like the young lady who might wonder when she would get pregnant, and in fact had the answer, would be able to save quite a bit on the cost of birth control. If I know I will not need an employment attorney until the year 2006, I doubt I will retain one through 2005. Not knowing when or if I may be subjected to a file audit, I will continue to keep the I-9 file alphabetically and separate from any other file. And I will spend my spare time praying that Brother Pork will escape audit.

FrayWitzer · September 2003

One other reason that I often recommend NOT keeping I-9s in personnel files: I-9s can contain information about an employee's nationality that cannot be part of any type of employment decision (promotion, discipline, etc.) It is not that I am really concerned that some supervisor is going to go into some employee's file, see the I-9, and then launch into a pattern of discrimination (even we employment lawyers are not THAT paranoid), but rather in some instances I have available to me as a defense the fact that a supervisor did not even know what the person's nationality was. The last thing I want is for some plaintiff's lawyer to whip the I-9 out of the personnel file and claim that, of course the supervisor knew...

Evan

Sunny · September 2003

Keeping them separate also may keep certain auditors from even looking at them. When I had my DOL audit, the auditor said she also was supposed to check on my I-9 compliance. I whipped out my active and inactive files of I-9's and she said, "Oh, that's all right. I see you have everything in order."

joe1 · September 2003

Robin,

My understanding of the law is that I-9's are to be kept separate from the personnel file. We alphabetize in a binder and retain for at least 3 years.

cthr · September 2003

The law doesn't require them to be kept seperate, it is just good practice for the reasons stated in prior posts. I9s must be retained for 3 years or 1 year from termination whichever is longer, unless you have a lot of turnover, you should have the majority of your I9s longer. You must retain them for the entire time an employee is active and then for some period of time after.

Whatever · September 2003

When I-9s first came out, I went to a seminar offered by INS. They recommended that I-9s be kept in a separate file basically for the reasons given above.

I-9 forms

Comments