Form I-9 is issued by the United States federal government, and it is required for anyone who is an employee in this country. Employees fill out information that indicates their legal authorization to work in the USA. Employers then review and verify the information.
The I-9 was originally created in 1986 to cut back on the number of illegal workers in the United States. The intention was to direct immigrants through the proper channels to obtain permission to work here.
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.
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.
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:
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:
The employer does not need to photocopy any of these documents, unless they participate in E-Verify (see below).
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:
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.
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:
An employment lawyer, like Employee Law Group, can help you figure out if you have a case and suggest next steps, such as:
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:
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.
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21250 Hawthorne Blvd. Suite 500, Torrance CA, 90503
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