Selecting Electronic I-9 Form Storage Vendors? PROCEED WITH CAUTION!!

Many employers have found benefits to outsourcing I-9 Form storage. But recent events should prompt them to make sure they are not putting their organization at risk. All employers must complete I-9 Forms for each employee hired on or after November 7, 1986. Employers choosing to store I-9 Forms electronically must make sure their electronic storage system has the features the regulations require. One requirement is that the system not be subject to any agreement that would limit or restrict access to or use of the system by a United States agency. In other words, if the Department of Labor (DOL) or the Department of Homeland Security (DHS) audits an employer's I-9 Forms, the employer must make electronically stored I-9 Forms available to the agency within the agency-established time period.

A recent dispute between a human resources service and its electronic I-9 Form storage vendor highlights the importance of careful selection of vendors. LexisNexis Screening Solutions contracted with employers to provide human resources services. Lexis also contracted with USVerify to provide electronic I-9 Form services to Lexis's customers. On April 1, 2011, Lexis notified USVerify that it would not renew its agreement when it expired on June 27, 2011, and requested the return of its customers' I-9 Form data. USVerify responded that it would return the data only in a particular format and for a fee. On June 27, 2011, Lexis filed suit seeking an injunction to require USVerify to return its customers' I-9 Form data in a reasonably usable and accessible format.

Employers who have contracted with Lexis are in a sticky situation because if the DOL or DHS audits them, they may not be able to make their I-9 Forms available to the agency within the requested time period. Accordingly, when you select an electronic I-9 Form storage vendor, ask questions such as:

• What would happen if the vendor assigns I-9 Form responsibilities to another vendor and later the arrangement between the vendors is terminated?
• Upon request, how quickly can the employer receive I-9 Form data?
• In what format would the employer receive the data?
• How much would it cost for the employer to receive the data?
• Does the vendor comply with the requirements in the regulations regarding the features that electronic I-9 Form storage systems must have?
• If the vendor contracts with another vendor with respect to I-9 Form responsibilities, does it ensure the other vendor complies with the regulations?

While outsourcing electronic I-9 storage may be a wise decision for your organization, no organization should assume that, by outsourcing, its interests are being protected. Ensuring such protection remains your responsibility. If you currently outsource I-9 Form storage or are considering doing so and have any questions concerning the steps you need to take to ensure your organization's interests are being protected, please contact counsel.