by The U.S. Department of Justice (DOJ) has issued a fact sheet alerting employers to the risks of unlawful discrimination and other compliance violations when using commercial software in fulfilling their I-9 obligations. https://www.justice.gov/d9/2023-12/joint_form_i-9_software_guidance_12_19_23.pdf.
A necessary part of the hiring process is establishing a new employee’s identity and work authorization by completing the I-9 form. Federal law requires all U.S. employers to complete and retain an I-9 form for everyone they hire. Many employers use I-9 software to complete and store the I-9 electronically. Unfortunately, using commercial products to handle I-9 forms does not guarantee compliance with federal law.
Highlights of the DOJ employer guidance include functions an I-9 software program must be able to do:
- Provide everyone completing I-9 forms access to the most up-to-date versions of the I-9 form.
- Employees must complete Section 1 before the employer completes Section 2.
- Allow optional and unused fields to be blank when I-9 process rules permit.
- Assure that employers can follow electronic form requirements found in the regulations, including rules regarding security, document retrieval, the option for summary files, and provide audit trails.
- Identify each person accessing, correcting, or changing information on an I-9 form.
The fact sheet also cautions employers about what the software cannot lawfully do, including:
- Automatically pre-populate the form with employee information from the employee’s job application or other external sources.
- Remove any I-9 fields.
- Auto-correct, use predictive text or post-date an I-9.
- Request unnecessary documentation.
Employers should use the DOJ fact sheet to select, use, and audit I-9 software to ensure compliance with regulations. The employer is responsible for ensuring that any systems it uses meet all legal requirements.
