Rehire Guide for Restaurants

As new federal and local government mandates are issued regarding the 2020 coronavirus pandemic, many restaurants that have been forced to lay off workers are already grappling with how to be I-9 compliant as they anticipate quickly onboarding employees after the pandemic-related closures are lifted.

Differentiating between furloughs and layoffs, knowing if a Form I-9 and E-Verify is still required, and enlisting professional compliance assistance will help determine restaurant owners’ path forward. Understanding now how to rehire laid off restaurant employees will expedite the process when it is time to put a plan into action.

 

Rehiring: Furloughs vs. Layoffs

Although it is not uncommon to hear furloughs and layoffs in the same sentence, the two terms are entirely different in meaning and implication.

  • Furloughs: A restaurant who furloughs workers is asking employees to essentially take an unpaid leave of absence. This is a temporary arrangement that is typically made in hopes of having an employee return to their job again in the not so distant future. In some cases, employees that are furloughed may even be able to retain some of their health benefits. For employers, the most important distinction is that furloughed workers generally do not have to go through a formal rehiring process.
  • Layoffs: Restaurants who are forced to lay off staff are basically releasing employees from that particular place of employment. Unlike being furloughed, the act of being laid off is considered a permanent termination of employment including benefits. Depending on the amount of time an employee is laid off, those employees that choose to return to an employer are more likely to be required to endure the formal rehiring process, at least in part.

 

Will a Form I-9 and E-Verify still be needed for restaurant rehires?

While the coronavirus pandemic is causing some small changes to parts of the overall hiring process, as of April 2, 2020 the Form I-9 is still a requirement to being I-9 compliant, and those companies already required to use the E-Verify system must continue to do so.

As the pandemic continues and uncertainty looms, it is critical that restaurants keep a close eye on any potential changes to the rehiring process in order to stay I-9 compliant and avoid possible punitive consequences.

To be fined or punished for non-compliance would likely be detrimental for a restaurant still getting back on its feet in a post-coronavirus pandemic world.

 

What To Do When Rehiring Employees Within Three Years Of The Employees Original Start Date

Restaurants who intend to simply rehire laid off employees may have the advantage of less steps to walk through if the employees are being rehired within three years of the date on their original Form I-9.

If an employee is rehired within three years of the date listed on their original Form I-9, the employer has the option of relying on the previous Form I-9 or having the employee complete a new one.

Employers who choose to rely on an employee’s previous Form I-9 (completed in the three years since the date on their original form), are still required to follow several additional guidelines:

  1. Employees that remain employment authorized as indicated on the original Form I-9 are not required to provide new documentation. In this case, employers must complete Section Three of the original Form I-9, sign, and date it.
  2. Employees whose employment authorization has expired must have their employment authorization re-verified via Section Three of the Form I-9. Employers should note that Section Three on the current version of the Form I-9 must be filled out. Filling out Section Three on older versions of the Form I-9 are not acceptable.
  3. Employees that have a Form I-9 with Section Three already completed must complete the same section on a new form and keep it attached to the existing Form I-9 paperwork.

 

Rehiring Employees After Three Years From The Employee’s Original Hire Date

Restaurants who are hoping to rehire employees that have an original Form I-9 date that is older than three years from today’s date, are required to complete a Form I-9.

In other words, an employer that is rehiring an employee that has worked for them for more than twenty years must still require that employee to fill out a new Form I-9.

 

How Lookout Services Can Help

Rehiring an employee at any point can be time consuming from a compliance standpoint. However, with the added urgency of reopening a restaurant post-coronavirus pandemic, the work involved to rehire and stay I-9 compliant can be somewhat overwhelming.

With more than twenty years of experience, Lookout Services is uniquely positioned to help restaurants meet the challenges of the rehiring process via digital I-9 compliance software which offers the following benefits:

  • A facilitated process that often saves time
  • A digital I-9 solution
  • Minimization of common Form I-9 errors including blank fields, incomplete fields, and missing signatures
  • Printable checklists for employers and employees
  • Time sensitive notices regarding multiple Form I-9 deadlines
  • Document tracking and archiving
  • Centralized reporting

 

If you are anticipating rehiring your restaurant employees post-coronavirus and require guidance on how to quickly onboard workers while still maintaining I-9 compliance, we hope you will consider enlisting Lookout Services as one of the newest members of your team.

I-9 Compliance For Mass Hires

While the spread of the coronavirus is causing some of the highest unemployment rates the nation has seen in years, many essential industries such as grocery retail, delivery services, and pharmacies are ramping up their hiring processes to accommodate the fast onboarding of staff. However, even in this time of crisis, companies must still maintain I-9 compliance for mass hires.

In addition to the increased pace of hiring which can be taxing for human resources departments, employers are now struggling to manage the Form I-9 process with some small changes brought about by these unprecedented times amidst the coronavirus pandemic. If your company is onboarding employees now, it is crucial to be familiar with the I-9 compliance process to protect yourself against future violations.

 

The Most Common Challenges for I-9 Compliance for Mass Hires

Even though some local offices of a company may be actively working, their corporate offices could be working remotely, which can be tricky when it comes to completing a hire that is Form I-9 compliant.  Some of the most common challenges for I-9 compliance for mass hires during coronavirus can include the ability for:

  • Employees and employers to fill out the Form I-9, specifically sections two and three
  • Employees to present employment authorization documents in person, face to face
  • Employers to review authorization documents in person for authenticity

 

Temporary Guidelines For Companies Operating Remotely That Wish To Hire

If an entire company’s workforce is working remotely during this difficult time, as of April 2020, they may have some flexibility regarding the inspection of authorization documents. It may be possible to virtually examine an employee’s authorization documents via fax, web-based conferencing, or a video call and consider them valid if:

  • The entire company is working remotely
  • The remote work policy is documented in house and with the Department of Homeland Security
  • The virtual method of inspection is documented on the Form I-9, specifically on sections two and three
  • A proper in person review of the employee’s authorization documents is done within three days following the expiration of the COVID-19 national emergency and is documented as such

As of April 2020, the virtual review of employment authorization documents is valid only until May 19, 2020 or three days after the national emergency is lifted. It is important to note that the coronavirus national emergency is a somewhat fluid situation, so it is crucial for employers to be certain what the hiring rules are at the time of hire to prevent being assigned noncompliance violations at a later date.

 

 

Temporary Guidelines For Companies Still Operating Regularly In Part That Wish To Hire

The rules are somewhat different for companies that are still operational, in part, with open offices.  While these companies may have flexibility in terms of selecting third-party authorized representatives to review an employee’s authorization documents, documents may not be reviewed virtually.

As of April 2020, employers that have at least one open office must still present employee authorization documents in person. However, an employer may temporarily be allowed to designate a third-party as an official authorized representative to review authorization documents and complete the Form I-9 in person.

Employers should be aware that federal and state guidelines regarding third-party designations may be different. For example, while a federal guideline may allow for a third-party to be designated as seen fit, some states require the third-party to have additional qualifications such as being a public notary.

 

I-9 Compliance Consequences

Despite the unique hiring challenges businesses across the nation are currently facing, the hiring process is to be taken seriously. Hiring companies may still be held liable for I-9 compliance violations made during the coronavirus pandemic, even those committed by a designated third-party.

 

Reducing Compliance Risks For Employers Amidst The Coronavirus Pandemic

While the need may be extreme for many companies to do mass hires to effectively serve the public, they are and will be held to federal I-9 compliance standards. To help combat possible overwhelming pressure on an employer’s human resources department during an already chaotic time, it may be worth enlisting the help of a compliance professional.

Lookout Services has more than twenty years of experience in assisting employers with onboarding employees in regard to proper I-9 compliance. In addition to their professional and knowledgeable staff, Lookout Services also offers digital I-9 compliance software which features the following:

  • Checklists for employees so they can review, in advance, the items needed to complete a Form I-9
  • Checklists for employers to keep each new employee on task in completing the Form I-9
  • A paperless, digital solution
  • Form deadline alerts for employers
  • Minimization of common Form I-9 errors such as blank spaces, incomplete fields, and missing signatures
  • The ability to track expiring documents and alert employers accordingly before it becomes a compliance issue
  • Assistance with document archiving
  • Centralized reporting
  • An optional interface with the federal E-Verify program complete with auto-population of E-Verify fields
  • Audit assistance such as mass prints of I-9 records and attachments

 

Don’t let a hasty mass hiring process put your company at risk for punitive consequences down the line. Consider a consultation with Lookout Services today to keep your company I-9 compliant through the pandemic and beyond.

How To Stay I-9 Compliant During Pandemic Related Closures

Employers that are hiring in the midst of these uncertain times are struggling with how to stay I-9 compliant during pandemic related closures. Many of these closures are affecting the validity of employee authorization documents and how employers can document special COVID-19 document extensions. By enlisting the help of a company that provides professional I-9 compliance guidance, employers may be better able to navigate the winding road ahead.

 

COVID-19 Temporary Guidelines For Hiring

As some companies continue to hire employees during these pandemic related closures, staying I-9 compliant is proving to be a challenge. To make things even more confusing there can be subtle differences on compliance rules depending on if a company’s entire workforce is working remotely or if at least some of their locations are physically open.

For companies that are entirely working remotely during the pandemic as of April 2020, there are some allowances being made for the virtual inspection of employee authorization documents through platforms such as web-based conferencing, fax, or virtual calls. To be eligible to do so, companies must do the following:

  • Have the entire workforce work remotely
  • Document the remote work policy with the Department of Homeland Security
  • Document the method of virtual inspection on the Form I-9 in sections two and three
  • Review tangible employee authorization documents in person within three days following the expiration of the end of the COVID-19 national emergency (or May 19, 2020) and then properly document this action

Companies that have at least some locations operating as normal, do not have the luxury of virtually inspecting employee authorization documents. However, they may be allowed to have a third-party act as an official authorized representative in reviewing authorization documents. Employers should note that some states may have more stringent rules on third-party designations than the national guidelines.

Whether employers are working remotely or have some physical locations open, it is crucial that they frequently check on government policy during this time of unprecedented change.

 

DMV Closures Affecting Employees Completing I-9 Forms

In this time of national business closures due to the coronavirus pandemic, many states have Department of Motor Vehicles (DMV) that are either closed or offering only limited services.

Unfortunately, this can have an unwelcome trickledown effect on employees attempting to successfully complete a Form I-9 for their employer. The primary problem with limited or no DMV services is that employees may have no other choice but to use an expired driver’s license as a form of identification on an I-9.

To help combat this issue, some states are extending the expiration date of state IDs and/or driver’s licenses.  While helpful, this presents a challenge for employers on how to document this unusual and temporary extension. The following steps may be helpful in this case:

  1. For employees with a driver’s license or state ID that is expired on or after March 1, 2020 in a state that has extended document expiration dates due to COVID-19, these forms of identification may still be acceptable as a List B document.
  2. To protect against I-9 violations, employers must document the acceptance of these documents in Section 2 of the form and enter the term COVID-19 EXT in the Additional Information Field.
  3. For added protection, employers should attach a copy of the DMV’s webpage or other supporting documentation as proof of the document extension.

Employers should check their state’s Motor Vehicle Administration or Department of Motor Vehicle’s website to confirm if they have or have not auto-extended the expiration date of driver’s licenses and state IDs.

 

How DMV Closures or Limited Services May Affect the E-Verify Process

Some companies either voluntarily or by mandate use the federal E-verify system to complement the Form I-9 process. Expired driver’s licenses and state IDs can cause some issues with E-verify as well.

In the case that an employee has an expired driver’s license or state ID that is eligible for an extended expiration date in their state due to COVID-19, employers should enter the actual expiration date of the employee’s document for E-verify purposes.

That said, the coronavirus crisis is causing many standard procedures to be reevaluated on an almost daily basis. Employers should check E-verify’s website daily for frequently asked questions to ensure proper procedure is being followed.

 

How Professional I-9 Compliance Guidance May Be Helpful

Learning how to stay I-9 compliant during pandemic related closures is just one of many issues that employers currently have on their plates, and it is overwhelming for many. Employers may want to consider enlisting the help of a company who specializes in professional I-9 compliance to assist with lightening their load and helping them stay on top of COVID-19 related compliance issues.

Lookout Services has provided I-9 guidance to employers for more than twenty years and offers digital I-9 compliance software that features the following:

  • A digital solution for I-9 compliance
  • Printable checklists for employees and employers to help keep everyone on task for completing the Form I-9 in advance of section deadlines
  • Time sensitive alerts for employers regarding impending deadlines
  • Minimization of frequently made Form I-9 errors such as incomplete fields, blank fields, and missing signatures
  • Document tracking
  • Document archiving assistance

 

Let Lookout Services assist you in learning how to stay I-9 compliant during pandemic related closures.  Call us to set up a virtual consultation today.

What Documents Are Required for Properly Filling out An I-9 Form?

Businesses nationwide are responsible for verifying each employees’ eligibility to work in the United States. While the concept is simple, the steps to being I9 compliant can be more complex. If a company hopes to be compliant with federal law, it is their duty to familiarize themselves with the Form I-9 procedure and the documents required for the I-9.

What is the Form I-9?

I9 ComplianceSince the passage of the 1986 Immigration Reform and Control Act, the law requires that employers and employees complete the Form I-9. This legal document of just one page consists of three main sections, each with its own deadlines.

Section 1:  Employees must fill out this section by the first day of employment. Employees must accurately and truthfully complete this section, or they can be charged with perjury. Employers should look over the final version of this section to make sure it is complete in its entirety without any blank fields or missing signatures.

Section 2:  This section of the Form I-9 requires that employees provide employers with one or more forms of identification to prove the employee’s eligibility to work in the United States of America. Once these forms of identification are supplied to the company, employers must verify the employee’s work eligibility by authenticating these same documents required for the I-9 within three days of an employee’s start date.

Section 3:  This last part of the form is generally completed by employers only if an employee’s work authorization expires, the employee has a legal name change, or if the employee is rehired within three years of the original date listed on the Form I-9.

When to Retain a Copy of I-9 Support Documents

It may seem like good sense to make and retain copies of important documents that the federal government requires a business to review, but when to retain a copy of I-9 related documents is a tricky question that can quickly send a business afoul of the law if the business isn’t paying close attention.

Immigration and Customs Enforcement has more than quadrupled worksite enforcement investigations in the last year. With the increased enforcement efforts, this is a great time for U.S. businesses to reevaluate the company’s procedures to ensure that it remains in full I-9 compliance. Depending on how the business operates, keeping copies of I-9 supporting documentation may be the right answer – if it is done the right way.  Otherwise, optional document retention could create more problems than are solved.

ICE Raid in Mississippi

Consequences of Non-Compliance

If a company is found to be non-compliant for the Form I-9 process, consequences can vary. However, it is worth noting that violations are issued on each case of non-compliance that is found. If a business has multiple employees that are found to be non-compliant, the penalties can stack up quickly and produce devastating effects.

Criminal violations can be issued to companies with documented patterns of recruiting, hiring, or referring employees not eligible to work in the U.S.  Civil violations tend to deal with hiring or continuing to hire an unauthorized alien, committing document abuse or fraud, discrimination, and more offenses.

Depending on the number of violations and the penalties that they carry, consequences could result in heavy fines, a loss of workforce, or possibly even the loss of a business license. Each of these situations can negatively impact a company’s bottom line and overall morale.

Avoid Ice Raid Be I-9 Compliant
While many American businesses are being extra diligent in an effort to stay Form I-9 compliant, a recent ICE raid in Mississippi has many companies doubling down on those efforts with a renewed sense of urgency.

What Employers Need To Know About I-9 Audits & Work-Site Investigation

With a stronger push for immigration laws to be strictly enforced, American businesses are quickly learning the importance of being Form I-9 compliant. In the last few years, the nation has seen the number of government investigations into I-9 compliance almost quadruple. While a company may not be able to escape a government audit, it can be proactive in ensuring its I-9 compliancy.

The Form I-9 and the Importance of Compliance

The Form I-9 is a legal document that employers in the United States must have their employees complete to determine their eligibility to work in the country. The form is a one-page document that consists of three main sections:

  • Section 1: Employees are responsible for accurately completing this section of the Form I-9 by their first day of employment.
  • Section 2: Employers are responsible for collecting and authenticating required I-9 documents from employees to verify their eligibility for employment within three days of their start date.
  • Section 3: Employers will need to complete this section in the case that an employee’s work authorization expires, their name is legally changed, or they are rehired within three years of the date listed on the Form I-9.

In order for companies to be compliant, each employee’s Form I-9 must be completely filled out and accurate, the required identification documents be acceptable, and timelines and guidelines of all three sections must be observed. While it may sound like a fairly simple process, it can be quite complex and often requires the United States Citizenship and Immigration Services’ Handbook for Employers M-274.  Many companies are also choosing to enlist the help of digital I-9 compliance software as an extra layer of protection and to help streamline the process.

For employers who have a large number of employees and in multiple locations, the process of becoming I-9 compliant becomes even more difficult. One of the primary issues is storage. All forms must be stored properly and be accessible to management and the government in the case of an audit.

While there are many reasons companies need to be I-9 compliant, the primary reason is because it is the law via the 1986 Immigration Reform and Control Act. When a company is found not to be in compliance with Form I-9 protocol, it could be putting its entire operation at risk. It is not uncommon for companies to be issued civil or sometimes criminal penalties for these violations, all of which can result in hefty fines that can impact a company’s bottom line.

However, by understanding what it means to be I-9 compliant, why it is important, and what to expect if your company is audited by the government, you can ensure your company is adequately prepared.

What happens during an ICE worksite investigation or audit?

In the event of an ICE audit, a Notice of Inspection (NOI) is typically provided to an employer. Legally, the employer has three days to provide the agency with its I-9 forms and other forms of documentation such as a business’ Articles of Incorporation, licenses, list of current employees, and even a copy of the payroll.

After the proper forms and documentation have been presented to the government agency, the agency conducts an inspection of the I-9 forms. While it is possible for the agency to grant the company ten days to make appropriate corrections for technical or procedural violations, the company could still be fined for mistakes. These financial penalties can range from several hundred to more than a thousand dollars per violation.

Fines are commonly issued in the case of a criminal violation, which may include a company’s documented pattern of using fee-based recruiting, hiring, or referrals of employees unauthorized to work in the U.S. Unfortunately, punishment can extend beyond fines and may result in debarment by ICE, which can prevent the company from being considered for federal contracts and receiving certain government benefits.

Common Results of an I-9 Worksite Investigation

Once ICE has completed reviewing the I-9 forms and documents, it typically notifies the party that was audited in writing of the outcome. Here are several more common types of notifications and what they mean.

  • Notice of Inspection (NOI) Results: A result by this name generally comes in the form of a letter to the audited party to let the representatives know that the company was found to be compliant. This document can also be referred to as a compliance letter.
  • Notice of Discrepancies: This result lets an employer know that there was some difficulty determining an employee(s)’ work eligibility based on the paperwork submitted by the employer. The employer is then expected to share that notice with the employee so it can present additional documentation, if available, to establish eligibility to work.
  • Notice of Suspect Documents: An audit result by this name is a step down from the previous two results. This type of notification lets the audited party know that ICE has found an employee that is unauthorized to work, and that civil and criminal penalties could ensue. That said, ICE generally gives both the employee and employer a chance to present additional documentation that proves the employee’s eligibility to work if the audited party or employee deem the finding to be an error.
  • Warning Notice: This audit result can mean that some substantive verification violations were found, but may not warrant a fine due to the expectation of an employer’s future compliance.
  • Notice of Technical or Procedural Failures: This notification makes an employer aware of technical violations that were found. The employer then has ten business days to correct the forms with uncorrected technical and procedural failures being subject to fines.
  • Notice of Intent to Fine (NIF): This type of notification generally equals dollar signs. A notice of intent to fine can mean that an employer may be issued a fine due to violations related to substantive, uncorrected technical errors, knowingly hiring, and continuing employment of unauthorized workers.

How Digital I-9 Compliancy Software Can Help

Digital I-9 compliance software is quickly becoming the wave of the future. Companies are turning to this resource to help them stay I-9 compliant. In general, the software helps minimize human error and provides timely reminders for action items employers must complete to stay compliant.

Compliancy software provides employers and employees with a basic checklist of information needed to complete the Form I-9. This helps employees prepare ahead of time and gives employers a visual reminder of what is completed and what still needs attention.

One of the most user-friendly features of compliance software is the alerts. The program should catch blank or incomplete fields and missing signatures. Any of these things could cause a company to be found non-compliant, but the software program helps to find these inconsistencies and draw an employer’s attention to them before submitting the form. The program should also assist in tracking expired Form I-9 documents, so employers are able to work with the employee to attain updated documents before they become a compliancy issue.

Another benefit of implementing I-9 compliancy software is that it offers document archiving and centralized reporting. Less paper is required when forms and required documents are digitized, and it also helps the program track which forms need to be retained and which do not. Centralized reporting allows employers to provide requested I-9 information quickly and efficiently in the case of government audits. As an added bonus, centralized reporting can be utilized at any point by management, which can help them stay proactive about their company’s I-9 protocol.

With thorough understanding of the Form I-9, its guidelines and regulations, and possibly the assistance of digital I-9 compliancy software, employers can have more peace of mind about being proactive and keeping the company in good standing with the government.

Is E-Verify a Background Check?

Courtesy of the 1986 Immigration Reform and Control Act, businesses nationwide are required to both verify and authenticate their employees’ legal eligibility to work in America. The legally required document which helps verify an employee’s eligibility to work is the Form I-9. An often-required complement to the Form I-9 is the E-Verify system. While both components deal with the legality of work eligibility, neither the Form I-9 nor E-Verify constitutes a criminal background check.

The Form I-9 is a legal document provided by the government that must be completed by both employers and employees within the proper timelines stated on the form. The form gathers important personal information from the employee regarding work eligibility, requires employers to verify identification documents provided by the employee, and handles proper documentation for eligibility follow up and rehires. The Form I-9 cannot be utilized to perform a background check.

E-Verify is, in some cases, an optional add-on service that complements the Form I-9. The system allows enrolled employers to match employees’ Form I-9 information against records accessible by the Department of Homeland Security and the Social Security Administration. E-Verify is not to be used for a background check as it only verifies work eligibility and does not review a potential employee’s criminal history.

A company that requires its employees to have a legal work eligibility status and a background check should be Form I-9 compliant, consider utilizing E-Verify, and do a thorough background check or hire an employment screening service.

E-Verify Expansion in Iowa to Come?

Everyone is talking about immigration policy these days, but another debate is taking place among Iowa lawmakers considering mandating E-Verify for all businesses. While immigration law remains exclusively in the hands of Congress by virtue of the Constitution, a few avenues exist for states to contribute to the discussion in a roundabout way. Several states have weighed in by requiring some or all businesses to use the E-Verify system to validate the work eligibility of new employees. Iowa is the latest state to consider the measure.

Worksite Enforcement of I-9 Laws

With immigration continuing to be a focus in the U.S., worksite enforcement of I-9 laws is something business owners should pay attention to. Immigration and Customs Enforcement (ICE) agents have ramped up scrutiny of Employment Eligibility Verification form (I-9) procedures, and the results have been eye-opening. In a single year, ICE has more than quadrupled the number of investigations: