Staffing suppliers can’t forward copies of I-9 forms to staffing buyers, we reported last week in Contingent Workforce Strategies 3.0. Staffing suppliers could provide an attestation their contingent workers are legal, but there may be another compromise solution buyers could pursue.
Attorney Neil Alexander, shareholder at employment law firm Littler Mendelson, said staffing suppliers could give staffing buyers the right of inspection. This would allow a representative of the contingent workforce program to physically inspect the documents, although not get copies. The same solution could apply to documentation related to a staffing supplier’s compliance with the Affordable Care Act to confirm a temp’s healthcare coverage
However, in order to comply with such a request from a buyer, the staffing supplier would have to be sure its candidates signed waivers allowing for the inspections, Alexander said. Staffing buyers would also need to be careful regarding joint employer theory in this regard. Also, waivers should not name a specific buyer.
“There’s a difference between providing copies and momentary access,” he said. “I’d be much more reluctant to send a copy than perhaps [allow] a visual inspection.”
I-9s are definitely considered confidential information. Rules even call for them to be kept in a separate file so unauthorized personnel do not inadvertently come across them.
On the other hand, I-9 compliance remains a key part of Immigration and Customs Enforcement investigations, and scrutiny has shifted to employers and away from undocumented workers, according to Littler Mendelson. States are also passing laws regarding employers’ obligations not to employ undocumented labor. And the US Department of Justice has also indicated it’s not appropriate for a contractor to “re-I-9” its subcontractors’ employees. These concerns help drive staffing buyers’ interest in ensuring their contingent workers are legally OK to work.
Fortunately for staffing buyers, they are not generally liable for problems with I-9 compliance. The employer (staffing firms) are obligated to complete the I-9s. However, staffing buyers could be liable if they have knowledge a contractor is supplying undocumented workers.
One example of a tactic that might raise suspicions occurred shortly after Arizona began requiring E-Verify on all employees, Alexander said. Some companies sprang up in Nevada to provide independent contractors to businesses in Arizona for the sole purpose of getting around E-Verify.