Best practices in I-9 retention: When to keep, when to shred.

AuthorFay, John

The Form I-9, Employment Eligibility Verification, is often a breeding ground for mistakes, some of which can have significant repercussions. Yet despite all of the risks, employers often miss out on one of the very few free lunches in I-9 compliance: shredding or purging all of those really old and errant I-9s that are beyond the Form I-9 retention requirement.

What the law says.

In a nutshell, an employer must retain an employee's Form I-9 for "three years after the date of hire or one year after the date of the individual's employment is terminated, whichever is later."

Some employers hastily interpret that to mean they could destroy I-9 forms of their current employees after a three-year period. But the retention obligation extends to the later of three years after hire or one year after employment ends. So the retention period only comes into play after the employment is terminated, for whatever reason.

The most recent edition of the M-274 Handbook for Employers attempted to clear up the confusion by warning employers:

* Never dispose of a current employee's Form I-9

* You must keep it for as long as the employee works for you, and for a certain amount of time after

* Only when an employee stops working for you should you calculate how much longer you must keep their Form I-9.

Calculating the retention period

As described above, the employer must retain the I-9 and accompanying documents for either three years after the date of hire or one year after the date employment ended, whichever is later. The M-274 also provides employers with another way of thinking about this. It instructs employers to separate terminated employees into two different buckets:

  1. If the employee worked for less than two years, you should retain their form for three years after the date you entered in the First Day of Employment field.

  2. If the employee worked for more than two years, you should retain their form for one year after the date they stop working for you.

Personally, I like this method as it can help you easily determine the...

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