HR Question of the Month

Remote Hires, I-9s, and Notaries?

Question

We currently hire field technicians all over the United States. We conduct interviews on the phone and via Skype and within the employees first 60-90 days they meet with their business unit manager in person. We are getting ready to head into a very busy recruiting season and need to know if the following option would work for verifying employee identity for I-9 purposes.

If a member of HR or management is not able to meet the employee in person within their first 3 days of employment, can we have the employee take the documents they are presenting with their I-9 to a notary and have the notary verify they are indeed the person in the picture ID, make copies of each document they are presenting and notarize the copies and then have the employee send the notarized documents to us along with the signed I-9? If this is an option do you recommend we keep copies of the presented identification or not keep them?

Answer

Generally speaking, within three days of hire the employer is obligated to physically review the original documents presented by an employee in connection with the Form I-9 (other than a birth certificate, for which a certified copy can be provided) to ensure that the document(s) presented establish the employee’s identity and authorization to work in the United States, and a member of the company’s management generally needs to sign the form to confirm and indicate that this is the case.

When this is not feasible, such as in cases where an employee is hired remotely (or perhaps where the employer is onboarding a large number of new hires at once and seeks to utilize outside assistance for I-9 compliance), an employer can designate an authorized representative to fill out the form and review the documents. This includes contracting with another person or business to verify the employee’s identity and work eligibility. Remember, however, that the person doing this is the employer’s representative. If any such agent, representative or independent contractor fails to sufficiently complete the I-9 on behalf of the employer or accepts inappropriate documents his or her actions and any violations or non-compliance are attributable to the employer.

In some cases employers can, and do, utilize the services of a reliable third party, but ideally the employer will want to ensure that this person is well-versed in I-9 compliance and can properly be utilized to physically review the documents presented and complete the I-9 on the employer’s behalf. Again, the employer is ultimately responsible for ensuring the form is properly filled out, so the employer may wish to consider the propriety of having its field technicians find any notary they can for this purpose — indeed such individuals may or may not be familiar with the requirements of the I-9 process.  If you wish to go this route, one way to minimize the employer’s risk is by entering into a separate indemnification agreement with the person(s) who would review the documents (and/or prepare specific indemnification language in any independent contractor agreement — but have local counsel draft to ensure it is enforceable) to protect the employer from any non-compliance violations, though as noted, the employer is generally responsible for compliance and ensuring that all of its employees are who they say they are (identity confirmation) and are legally authorized to work in the US (employment eligibility).

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