While the I-9 form may seem punitive to undocumented workers, when used properly, its purpose benefits all workers overall. Being required to verify employment status makes it more difficult for employers to hire workers “under the table,” which often makes them more at risk of workplace abuse, lower pay, and denial of employee rights.

Employees’ I-9 forms must be kept for at least 3 years from the date they were completed. They must be stored in such a way that they are accessible within 3 days should a government inspection take place.

What If an Employer Misclassifies You as an Independent Contractor (No Form I-9)?

If you were not asked by your employer to complete Form I-9 and instead given a W-9 form (or perhaps nothing at all), you have been misclassified. Some employers misclassify employees to get out of paying taxes, unemployment, workers' compensation, benefits, and other expenses.

Misclassifying an employee as an independent contractor also makes it easier for the employer to let someone go without following proper notification requirements, and it can facilitate wrongful termination.

There are standards in California to determine if a worker is an employee or an independent contractor (aka freelancer, self-employed worker, or 1099 worker).

If you think you have been misclassified, you can speak with your employer to see if it was an oversight or error. Otherwise, you may wish to speak with an employment attorney to have your rights upheld.

What Kind of ID Documents Do You Need for Form 1-9?

As mentioned above, employers ask for identification and/or employment authorization documents from employees when they review their 1-9 form. They want to make sure workers fall into one of these categories:

• Citizen of the United States
• US non-citizen national
• Lawful permanent resident
• Non-citizen authorized to work



In order to verify an employee’s status, employers request these documents, sometimes individually and sometimes in combination, to confirm both identity and employment authorization:

• US passport
• Permanent resident card
• Alien registration receipt card (form I-551)
• Foreign passport containing I-551 stamp or 1-551 visa notation OR form I-94A
• Employment authorization document with photograph (form 1-766)
• American or Canadian driver’s license or US ID card
• School ID card
• Voter’s registration card
• US military card or draft record
• Military dependant’s ID card
• US Coast Guard Merchant Mariner card
• Native American tribal document
• Social Security card valid for employment
• Birth certificate from the Department of State or issued by a US State
• US Citizen ID card (form I-197)
• Resident Citizen ID card (form I-179)
• Employment authorization document issued by the Department of Homeland Security

The employer does not need to photocopy any of these documents, unless they participate in E-Verify (see below).

What Is E-Verify?

E-Verify is a website run by the US Department of Homeland Security. The E-Verify website lets employers screen out workers who have either entered the United States illegally or violated immigration laws.

Participation by employers is nearly always voluntary in California, other than for federal contractors and vendors. However, in nine other US States, use of E-Verify is mandatory for all employers.

If your employer photocopies documents for use with the E-Verify system, they must follow these rules:

• Photocopies must be kept in a secure location with the I-9 form.
• If storing the images in the cloud, the originals should be destroyed and the employer must follow secure online storage protocols.
• If they keep photocopied documents for one employee, they must do it for all employees.
  

Do Independent Contractors Need to Fill Out Form I-9?

Only employees need to fill out an I-9 form. It is not necessary for independent contractors to do this. Instead, they submit a W-9 form to clients so they can later be issued a 1099 form prior to filing their annual tax returns.



Other workers who do not need to complete form I-9 include volunteers or people who receive no compensation for their work and some informal household workers, like casual babysitters.

How Can an Employment Attorney Help with Misclassification and Similar Issues?

Employee misclassification and failure to collect I-9 forms is a violation of the law. Your employer can face stiff financial penalties for doing this. Sometimes misclassification and work authorization infractions accompany other ways of breaking the law, including:

• Discrimination
• Harassment
• Wage theft
• Retaliation
• Unsafe work conditions
• OSHA break violations
• Wrongful termination

An employment lawyer, like Employee Law Group, can help you figure out if you have a case and suggest next steps, such as:

• Documenting violations and collecting evidence
• Filing an official complaint with the state or federal government
• Pursuing a lawsuit in court
• Starting a class action lawsuit if many employees are involved

Unfortunately, filing a formal claim or initiating a court case may be the only way you get the employer to stop their illegal behavior. The good news is it may result in making the workplace safer for you and others as well as:

• Getting the proper employment classification for your job
• Being reimbursed for money you are rightfully owed
• Restoring your lost job or reputation in your industry

Has your California employer tried to convince you that you are an independent contractor when you should really be an employee? Have you not been asked to complete an I-9 form, or is your employer practicing favoritism, like only photographing documentation from some workers?

If so, Employee Law Group is here to assist you with your situation in the Los Angeles area. An initial consultation is completely free. Call us at 310-606-0065, or get in touch online with your questions.