Employee Eligibility Verification for an Out-of-State Worker
During the month or so before Lea's start date (and eventual visa approval), my HR consultant Wanda Easley-Small put together all of the documents I detailed in part 1. We both worked on customizing some of the company policies, but she pretty much did everything else.
What Wanda couldn't do is manage the I-9 process. The I-9 form verifies the identity and employment eligibility for employees hired in the U.S. This form must be completed by both the employer (or authorized representative) and employee. As part of this, the employee must present documents verifying his or her eligibility to work in the U.S., and the employer (or authorized representative) must physically examine these documents. Photocopies, electronic files, scans, etc. are not acceptable.
This meant that I either needed to fly up to Seattle to do this, or I needed an authorized representative to do it for me. As much as I wanted to see Lea and welcome her, I'd already spent more money than I truly cared to and a flight just wasn't in my budget or schedule. Fortunately, anyone could be designated as my authorized representative to execute the I-9, including notaries. And so that's what we did.
A few key points about using a notary to review and verify the I-9:
It is not a notarization and, as such, the I-9 should not have the notary seal.
Also, because it is not a notarization, the notary should not indicate his or her title as “Notary Public,” but instead as “Authorized Representative.”
Don't assume that every notary is familiar with verifying an I-9. Do yourself a favor and speak with the notary ahead of time to confirm they will do the verification and understand the scope of what is involved (remember, the verification is not a notarization).
Additionally, timing is important with the I-9. Section one has to be completed on or before the first day of work (the start date). Section two must be completed within three days of the employee's start date.
Also, because I was hiring Lea on a TN visa, I had to create a reminder for myself to reverify her I-9 three years from her visa date. If/when we reach that point, we'll need to go through the I-9 process again.
Lastly, because Lea and the notary completed the I-9 in paper format, it had to be maintained in this original format. Again, no photocopies, scans or the like. So, once Lea met with the notary and completed the I-9, she sent it in the mail to me for keeping.
Document Storage & Record Keeping
Because Lea and I work remotely from each other (and we're savvy Internet users) we planned to use Dropbox for all of our client and project files. With that in mind, I figured we'd also use it for storing Lea's employment documents.
Thankfully, Wanda advised me of specific personnel document storage laws I needed to follow. First and foremost, she clarified for me the difference between “new hire” documents and “personnel files”:
Any document with a social security number or protected information is part of the personnel file.
Personnel file documents must be stored separately from all other new hire or employment documents.
Additionally, the I-9 form must be stored separately from everything else. This is because the I-9 must be made available for inspection by authorized officials from the Department of Homeland Security, Department of Labor or Department of Justice. Wanda explained that if I kept the I-9 with other files, these officials could then access these other files, which is outside of their purview and could even violate the rules for protected information.
Regarding electronic storage of employment documents, there are specific laws that must be followed. These are extremely detailed and there are different rules for different types of documents, but the basics require that electronic storage be:
For all of these requirements, the laws emphasize reasonable controls to ensure each are met. And to clarify the accessibility requirement, it means the electronic storage must allow for legible reproduction in hard copy. For Lea's employment documents (with the exception of the I-9, as I explained above), Dropbox would be suitable. That said, for my own record keeping, I chose to print hard-copies of some documents, such as her emergency contact information and company policy sign-offs.
For those hard-copy documents, Wanda advised that they must be kept in locked storage. I already have a large floor safe for my business, so I decided to use that. However, because the I-9 must be stored separately from all others, I invested in a second safe.
Beyond document storage, there are also record retention rules that specify how long different employment files must be kept and when to shred (emphasis on destroying, not just throwing away). Once again, Wanda to the rescue. She provided me details for each document I was dealing with. In the event Lea's employment is terminated, I'm responsible for retaining:
Original job description and Lea's job application for one year from the date of termination
Payroll records for three years from the date of termination
Employment documents with protected information for three years from the date of termination
Tax records for four years from the date tax is due or paid
As with the electronic storage, the rules are far more detailed than I've listed, and different laws specify different lengths of retention for different documents. To make it even more complex, the employment documents for different types of workers vary with different laws. For me, I'm going to err on the side of longest retention period for all documents.
In part 3 of this series, I'll share what was needed for payroll, as well as Washington's requirements for out–of–state businesses. In part 4, I'll detail all of the employment-related taxes and fees for which I'm now responsible.
Legal Blah Blah
I hope it goes without saying, but please don't take anything I've posted here as anything other than my and Lea's own personal experiences. What worked for us is just that … what worked for us.
If you need expert advice, seek an expert.