With employers’ increased use of electronic Forms I-9 and more states mandating use of E-Verify, a number of electronic I-9 and E-Verify vendors are offering services to help employers with these demands. However, difficulty can arise for employers if the ownership of data and the terms of that ownership are not clear, as illustrated by a recent lawwsuit.
Furthermore, some background screening providers, applicant tracking system providers, and all-in-one human resources solutions providers are reselling the electronic I-9 and E-Verify functions to third-party vendors, which can further complicate issues regarding data ownership and access.
While these services are useful and can streamline the on-boarding process, employers must be diligent to ensure that they maintain access to all I-9 and E-Verify data.
If audited by the Immigration and Customs Enforcement (ICE) (see our earlier post, ICE to Issue 1,000 Audit Notices to Employers, Focus on Infrastructure Safety), employers have only three days to gather the requested information for ICE. Therefore, it is critical that employers can access their data quickly. When choosing an electronic I-9 provider or a system with a reseller arrangement, employers should ask:
1. Who owns the I-9 and / or E-Verify data?
2. Where is the data stored?
3. Is the data commingled with other employers’ data?
4. Can the employer request a backup of the I-9 and E-Verify data at any time?
5. What is the cost of a data backup?
6. In what format will the backup be provided?
7. What happens to the employer’s data if the vendor changes its resellers?
8. What happens to the employer’s data if the vendor or reseller goes out of business?
There are specific electronic I-9 retention system regulations that can affect every aspect of a vendor’s system and the employer’s relationship with the vendor. It is important that employers speak with experienced counsel before entering into an electronic I-9 or E-Verify vendor relationship.