Employers must complete a new Form I-9, Employment Eligibility Verification, when a “hire” takes place. However, there are situations where a hire has not taken place if the employee is continuing in their employment and has a reasonable expectation of employment at all times.
An employee may be continuing in their employment when the employee:
- Is on approved paid or unpaid leave because of:
- Illness or disability of a family member
- Illness or pregnancy
- Maternity or paternity leave
- Union business
- Other temporary leave approved by the employer.
- Is promoted, demoted, or gets a pay raise.
- Is temporarily laid off for lack of work.
- Is on strike or in a labor dispute.
- Is reinstated after a disciplinary suspension for wrongful termination that was found unjustified by any court, arbitrator, or administrative body, or was otherwise resolved through reinstatement or settlement.
- Transfers from one distinct unit of an employer to another distinct unit of the same employer (in which case the employer may transfer the individual’s Form I-9 to the receiving unit).
- Continues their employment with a related, successor, or reorganized employer, provided that the employer obtains and maintains from the previous employer records and Form I-9 where applicable. This includes the same employer at another location or an employer that continues to employ some or all of a previous employer’s workforce in cases involving a corporate reorganization, merger, or sale of stock or assets.
- Is engaged in seasonal employment.
Reasonable Expectation of Employment at All Times
To determine whether an individual can reasonably expect employment at all times, it might be helpful to answer these questions:
- Was the individual employed on a regular and substantial basis similar to others in the same job?
- Did the individual comply with the employer’s established and published policy regarding temporary absences?
- Based on the employer’s past history, is it likely that the employer will call the individual back to work within a reasonable time?
- Will the individual’s job be available when he or she returns or has it be taken over permanently by another worker?
- Has the individual sought or obtained benefits during the absence from employment that are inconsistent with an expectation of resuming employment within a reasonable time in the future (e.g., severance and retirement benefits)?
- Does the financial condition of the employer indicate its ability to permit the individual to resume employment within a reasonable time in the future?
- Does communication between the employer and the individual indicate that it is reasonably likely that the individual will resume employment within a reasonable time?
Complete Form I-9 When There is No Continuing Employment
For employees who have not been continuously employed and/or did not have a reasonable expectation of employment at all times, a “hire” is considered to have taken place when the employees return to work. If this occurs within 3 years from the initial date of execution of Form I-9, the procedures for rehires may be followed. If this occurs after 3 years from the initial date of execution, a new Form I-9 must be completed.
Form I-9 Requirements when Distributing Backpay to Terminated Employees
When you distribute final backpay to terminated employees who had a reasonable expectation of continuing employment but have since been informed that their employment will not resume, you are not required to update their Forms I-9 or complete a new form.