Business Law Notes
Spring 2007 Edition
Immigration issues have increasingly become a daily concern for businesses in North Carolina and nationwide. One of the most common problems is proper completion and retention of immigration form I-9. Here is an outline of some key points:
Most Common I-9 Form Mistakes:
- Not Dated
- Three-Day Violation (I-9 form must be completed within three days after hire)
- Failure to Sign
- Failure to Re-verify (before employment authorization expires)
- An I-9 must be completed for every new employee hired.
- The I-9 form must be completed, signed and dated no later than three business days after the date of hire. This is a frequent ground for assessment of fines.
- Look for obvious problems with documentation, e.g., misspelled words, inappropriate age.
- You must be able to retrieve an employee’s I-9 form within three days.
- Every item on the I-9 form must be filled in – use “N/A” if appropriate.
- Over documenting can lead to a discrimination charge. If additional documents are requested, make a notation for the reason in the file.
- If the decision is made to destroy old documents, have a notation in the file as to when they were destroyed and why.
- “No Match” or “Mismatch” letters from the Social Security Administration – do not fire the subject employee. Contact the appropriate government authority to be certain of the procedures.
- Where the employee states in Section I of the I-9 form that his employment authorization will expire on a specified date or where the employee provides documents with an expiration date, the employer must reverify the I-9. The reverification must take place before the employee’s employment authorization expires. The Employer can use Section 3 to update and reverify employment authorization. A new I-9 form will also constitute reverification. IT IS CRITICAL THAT THE EMPLOYER CALENDAR THE DATE FOR REVERIFICATION.
- Lost forms – if an I-9 form is lost, prepare a new one with the current date; do not backdate. Make a notation that this new form replaces a lost form and give a reason for the loss of the form (for example employee relocated within the company).
- Correction of errors – make the corrections in a different color of ink; initial the corrections; date the corrections; make a notation of the reason for the corrections. If you do a new I-9 form, date it the current date (do not backdate) and attach it to the old form. Note the reason for doing the new I-9 form.
- Keep I-9 forms for all current employees in a location where they can be retrieved within three days. For terminated employees, you have to keep I-9 forms for the greater of one year after termination or three years after start date (play it safe – keep them for THREE YEARS AFTER TERMINATION).
Subcontractors – Ripe Area for Investigation:
- Require that subcontractors comply with all laws, including immigration laws and I-9 requirements.
- Have contract provision (and insist on compliance) requiring that the subcontractor must inform your company in writing of all past and future audits, past and future violations, and past and future investigations.
- Subcontractor should provide a list of its employees that will be working for the company and written verification that the subcontractor has a completed I-9 for each employee.
The Federal Trade Commission has recently changed the rules of the franchise game – a little. Compliance with the new rules begins on a voluntary basis on July 1, 2007 and becomes mandatory nationwide on July 1, 2008. Many of the changes are just clarifications and many of the changes are more favorable to franchisors. However, a few of the changes will benefit prospective franchisees. Here are some of the most significant new franchisee protections:
- The new rule prohibits franchisors from placing a standard disclaimer or waiver in the franchise agreement that nullifies disclosures in the Uniform Franchise Offering Circular (UFOC). This is probably the most important new protection for franchisees. A note of caution – you can lose this protection by “voluntarily waiving specific contract terms and conditions” during the course of sales negotiations.
- The franchisor will be required to notify the franchisee of the existence of a franchisee association in certain circumstances.
- Electronic disclosures will be allowed.
- Disclosures concerning corporate parents and affiliates are somewhat expanded.
- Disclosures concerning “franchisor-initiated” lawsuits will be required.
- If the franchisee will not have an “exclusive territory,” this must be disclosed.
- There will be greater disclosures concerning renewal of the franchise.
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