How should I retain Form I-9?

Form I-9 must be retained for three years after the date of hire or one year after the person's employment is terminated, whichever is later. Two issues face you in this matter, however: Should you keep copies of the documents you've examined, and where should your I-9s be stored?

Though you are not obligated to keep copies of the documents you've examined, they can be vital evidence should your company be audited. These records, however, should be kept in a separate file specifically for I-9 records.

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You're under no obligation to keep copies of drivers' licenses, Social Security cards, passports, or any other documents that you use to comply with Form I-9. Many employers prefer not to retain any documents for fear that the record retention itself may become too burdensome.

On the other hand, there are several valid reasons for keeping copies of the documents used to establish compliance with the law. First, if a supporting document turns out to be fraudulent, the photocopy will establish that you examined the document and that it appeared to be genuine on its face. Since you, as an employer, are not required to be a document expert, a photocopy will help you establish that the document that you examined had no visual cues to doubt the document's authenticity. Second, if you can show that you've complied with Form I-9 requirements, your company will have established a ''good faith'' defense with respect to a charge of knowingly hiring an unauthorized alien.

As far as storing I-9 documents, most employment experts agreethatI-9documentsshouldnotbekeptinemployees'person-nel files; instead, a separate binder or folder should be used where all company I-9s are housed. Why? Employers are frequently caught unprepared for I-9 audits and often must scramble on three days' notice to compile the necessary records. Weeding through employees' personnel files takes too much time when speed is of the essence. Ready-to-use binders, on the other hand, make the task of inventory management that much easier.

In addition, maintaining a separate I-9 file will better serve all employees' privacy interests and lessen your company's liability for failing to protect those interests. After all, most employers wouldn't care to have government auditors combing through their employees' personnel files where other information, such as performance reviews, 401(k) savings information, or other private records, are housed. Not only is such confidential information irrelevant to the I-9 audit, but also, if unrelated information in those personnel files triggers the INS to notify other branches of government regarding potential violations found in personnel records, your company may end up with an additional audit on its hands! Besides, I-9 forms often include information about an employee's national origin, so it makes sense to separate them from the regular personnel files.

Am I obligated to have an affirmative action plan?

Possibly. Affirmative action plans aren't required of all employers. However, employers and subcontractors who enter into contracts with the federal government and certain public sector employers such as community colleges and school districts are required to have such plans. In addition, affirmative action obligations may be imposed on companies as part of a court-approved agreement (for example, following the finding of employment discrimination in a class-action lawsuit). Finally, companies may voluntarily elect to have affirmative action plans in an effort to correct imbalances against protected classes in traditionally segregated job categories.

More specifically, government contractors and subcontractors with fifty or more employees and contracts of $50,000 or more are prohibited from discriminating against any employee or applicant for employment on the basis of race, color, religion, sex, or national origin. These employers are required to have a written plan and to take affirmative efforts in employment and promotions so that minorities and women will be employed at all levels in the workforce.

Affirmative action imposes on employers the duty to take positive steps to identify discrimination against protected classes and to improve work opportunities for women and minorities. Affirmative action, as its name implies, requires a company to proactively reach out to qualified members of groups that were formerly excluded from hiring and promotional opportunities. The concept is fairly simple: Unless companies aggressively combat the effects of unintended discrimination, the status quo will remain, and protected groups of employees will continue to be excluded from equal employment opportunities.

The mechanics of affirmative action plans are complicated and go well beyond the scope of this book. However, suffice it to say that one of the key challenges in any company's affirmative action plan is quantifying the results of its outreach efforts. That, in turn, involves determining areas of workforce underrepresentation via a current workforce analysis, geographic labor force analysis by race and sex, a corrective action plan with goals and timetables for correcting any underutilization, and a self-audit system.

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If your company already has or needs to develop an affirmative action plan, chances are that you'll retain the services of a law firm or qualified consulting firm. One of the most common challenges you'll face on a day-to-day basis, however, will lie in your applicant flow log. Under federal equal opportunity and affirmative action laws as well as the laws of many states, companies are obligated to maintain personnel activity data, including data on the race and sex of applicants.

The reason for this is that government audits and discrimination investigations partially focus on gathering information on all applicants who have applied for positions and comparing those flow statistics to current workforce demographics. In addition, employers must also analyze these applicant flow statistics for adverse impact. Adverse impact occurs when the selection rate for any protected group is less than 80 percent of the rate of selection for the group with the highest selection rate (for example, white males). A protected group or classis any group of people who are protected by the law against discrimination (for example, women and minorities).

Defining what is an ''applicant,'' therefore, takes on critical importance in cases of audits and investigations. The EEOC doesn't help much here. Historically, federal enforcement agencies like the Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) have looked to the EEOC's Uniform Guidelines on Employee Selection Procedures for a definition:

The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed by completing an application form or might be expressed orally, depending on the employer's practice.

Furthermore, in September 1997, the OFCCP stated that ''whether an individual will be considered an applicant turns on the employee selection procedures designed and utilized by the contractor.'' This definition serves employers well because the newer interpretation has generally said, Look to the employer's definition of an applicant when determining applicant flow statistics.

On the other hand, these definitions are susceptible to review and redefinition over time. As a matter of fact, in the absence of an employer's defining just who is an applicant, courts may use their own discretion in formulating a definition. Of course, that's bad for employers because mass mailings, online resume dissemination, Internet job data baser retrieval, and the like all expand the pool of candidates to a point of distortion. Therefore, your best bet is to define an applicant in writing and to apply that definition on a consistent basis. For example, you might define an applicant as ''an individual who applies in person by completing an official company employment application or by delivering a resume and thus whose race and sex may be determined.'' You can also add wording to specify that ''an applicant is also an individual who is interviewed by an authorized company representative.''[1]

By employing such a practical, focused definition, you'll avoid having to include job applicants in your applicant flow log who:

- Have had their resumes downloaded from the Internet but haven't been called in for an interview.

- Have forwarded unsolicited resumes on their own volition but haven't been called in for an interview.

- Have forwarded ''solicited'' resumes in response to an advertisement but weren't called in for an interview.

These individuals are screened out of the applicant flow log according to the definition given earlier because their race and sex cannot be identified (unless and until they are called in for an interview). Of course, you'll still need to retain those resumes; you can't just discard them. But you'll make your life a whole lot easier at the time of an EEO audit or investigation by restricting the number of ''applicants'' who must be counted in your flow log.

There are volumes of information relating to affirmative action plans. As in all matters with such serious legal implications, refer your specific questions to qualified legal counsel for further information.

  • [1] Robert J. Nobile, Esq., ''Who Is an Applicant,'' HR Advisor: Legal and Practical Guidelines, January/February 1998, Vol. 3 No. 4. The HR Advisor is published by the law firm of Warren Gorham & Lamont in Boston.
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