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I-9 what is "3 business days"
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I-9 what is "3 business days"
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I know this sounds silly, but for the I-9 requirement that it be completed in 3 business days does that mean on day 3 of work or day 4 of work for the employee?
"One business day" in my mind does n
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Forums » Topic Forums » Legal Forum » I-9 what is "3 business days"
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I-9 what is "3 business days"
posted at 4/29/2010 11:14 AM EDT
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Posts: 160
First: 12/5/2002 Last: 4/26/2011 |
I know this sounds silly, but for the I-9 requirement that it be completed in 3 business days does that mean on day 3 of work or day 4 of work for the employee?
"One business day" in my mind does not mean that day, but the following day. If a package were due to arrive in "2 business days" that would imply that it will arrive the day after tomorrow. So for 3 business days would that mean 3 days after the employee starts (their 4th day of work) or does it need to be completed by the end of day 3? |
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I-9 what is "3 business days"
posted at 4/29/2010 11:34 AM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
If you want to practice safe I-9, do it within the first three days of employment. If the employee shows up for work on the 4th day without providing the documentation, you technically should not be allowing that person to work.
Is anyone outside the State of Arizona actually checking and auditing I-9's anymore? Used to be a part of Affirmative Action audits by OFCCP, but has anyone had any Fed take a look at their I-9's within the past few years? |
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I-9 what is "3 business days"
posted at 4/29/2010 12:22 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I-9's are not something that I would mess around with. I would suggest three business days is just that. Whatever your hire date/first day of work is plus 2 more days. Then they can NOT work the 4th day without the documentation. If they bring it on the 4th day, yes, they could work that day. If not, they dont' work until the day that they bring it.
Everything I read in : http://www.uscis.gov/files/nativedocuments/m-274.pdf states "within 3 business days of the date employment begins"..to me the within includes the date of employment if it is a business day. I wouldn't want to argue with DHS/ICE about whether that means 3 or 4 days or whether it includes the day of hire. Therefore I tell my location managers not wait until the 3rd day to followup, but to do so on the 2nd day also. |
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I-9 what is "3 business days"
posted at 4/29/2010 12:36 PM EDT
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Posts: 160
First: 12/5/2002 Last: 4/26/2011 |
Here is something interesting from the E-veryfy website. There is a help bubble next to the hire date field.
"The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form I-9. The employer must initiate the query no later than the end of three business days after the new hire's actual start date." Now this does not expressly say anything about form I-9, but implies 4th day of work. BTW the E-verify system will not allow you to run the query on a date before the hire date, probably to discourage use as a screening tool. |
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I-9 what is "3 business days"
posted at 4/30/2010 11:47 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
But again, I wouldn't go with anything that is "implied" because that is open to interpretation...which may or may not be the same as yours.
I would got with what is expressly stated...and that is within 3 days. I have never heard of NOT counting the hire date as one of those 3 days. And again I wouldnt' want to be the one arguing it in a court of law. If you want/need to have the 4th day, I would pass it by competent labor law attornies (NOT a corporate atty, not a tax atty....but a labor law atty!) so that you have someone to blame should you ever get a call about it. |
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I-9 what is "3 business days"
posted at 4/30/2010 12:55 PM EDT
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Posts: 160
First: 12/5/2002 Last: 4/26/2011 |
Does anyone have experience with how this would work for a temp-to-hire scenario?
For example if the employee is working as a temp through an agency we presume they have a valid I-9 there. If we make an offer to hire, but they fail to provide ID to complete the I-9 within the 3 days. Rather than suspend or terminate the employee, we simply rescind the offer, make another offer to hire the next week and try again, completing a new I-9. Obviously we can't do this ad infinitum, but if they were legal to work for us through the agency before the offer I don't see why we couldn't continue to do that. So in this case day 4 becomes a test for if they will complete the hire process and be considerd a regular employee or if they will continue to be considered a temp. Either way they still work on day 4. |
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I-9 what is "3 business days"
posted at 4/30/2010 3:43 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I think you are coming really close to some fine lines in immigration/I-9 laws. There is a good chance that you are considered a "co-employer" with the temp agency. If the agency's I-9 records were audited and found bad, it might possibly be enough to open an audit on you. The "arm's length" of an agency only goes so far....especially if the audit proves you had knowledge of the situation.
And especially if you are trying to hire someone from their agency who can not provide you the proper paperwork to become your employee. At that point, you have knowledge...And if it is happening on a consistent basis, then you have a lot of knowledge. Instead, you want to keep them on working with that knowledge just because you feel you are covered by the agency? And that they have 100% of the liability.... If anything I would be requiring the agency to provide the I-9 for all temporary employees if I sensed their was an issue. I would at least audit here and there so YOU can prove you did your due diligence....instead of trying to find ways to get around hiring and keeping employees that don't have proper paperwork. Because honestly that's what it sounds like you are trying to do. You are looking for an "implied" extra day...you are looking for a way to keep someone who doesn't have paperwork in order on that extra day.... |
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