A rule adopted by the West Virginia legislature significantly affecting West Virginia employers took effect last summer on July 1, 2015. This rule amended the procedures required for West Virginia employers to verify the legal employment status of their employees. West Virginia law (W.Va. Code § 21-1B-4) requires all employers to keep “records of proof of the legal status or authorization to work of all employees.” The state of West Virginia has now amended this rule in many aspects. What may be most interesting is that some of the new rule’s procedures conflict with the employment eligibility verification requirements of federal Form I-9.
Within three business days of the employee’s start date, all U.S. employers are required by federal law to verify each employee’s eligibility for employment in the United States by certifying the worker’s paperwork and completing Form I-9. However, the new West Virginia rule as amended requires employers to verify legal employment status prior to the employee’s first day of employment, or prior to entering into an employment contract with any employee, in direct conflict with the federal government’s three-day provision.
On its face, the amendment thus conflicts with the federal Form I-9 employment eligibility verification requirements regarding the timing of verification, which may give rise to potential discrimination claims against employers. It also conflicts with details regarding what records constitute adequate proof and how long records should be retained after employees leave employment. In this case it is always wise to do too much instead of too little. Smart employers should still comply with federal Form I-9 requirements to avoid federal penalties.
One of the forms of discrimination prohibited by the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, is document abuse, specifically, unfair documentary practices during the employment eligibility verification, Form I-9, process. Neither the West Virginia nor the federal law conforms to each other in what documentation is required for employment verification. Under federal law, an employer may start employment subject to verification. He or she may not start employment under the new state rule until verification.
Any West Virginia employer that complies with the new West Virginia rule may subject itself to discrimination claims under the Immigration and Nationality Act. Employers may not, on the basis of citizenship status or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others. This provision protects all work-authorized individuals. In addition to ambiguous terminology and a failure to specify the origin of certain documents, the amended state rule includes a certainly ambiguous “catch-all” provision that accepts “any other valid document providing evidence of legal employment status in the United States.”
While West Virginia requires that employers maintain employee records for at least 2 years after the employee leaves employment, federal law mandates that employers retain a completed Form I-9 for either three years from the employee’s date of hire or one year after the date the employee is terminated, whichever is later. Thus, employers may comply with West Virginia law, but not federal law, if they retain records for two years.
As we can see, an employer’s compliance with West Virginia law usually will not satisfy federal requirements rather than vice versa. This legal confusion may result in dire consequences such as potential discrimination claims against employers that result in significant penalties under the Immigration and Nationality Act. Until these conflicts between West Virginia and federal law are reconciled, employers should still comply with federal Form I-9 requirements and retention guidelines to avoid the aforementioned INA penalties. Legal counsel is of the utmost importance in understanding these requirements, as it is with the enactment of practically all new or amended labor or employment legislation. W.Va. Code § 21-5C-5.
If you are an employer in and around Huntington, or anywhere in West Virginia, and have questions regarding the verification of an employee’s eligibility for employment in the United States under both federal and state law, especially in light of the new West Virginia rule, please call Amy Crossan, an expert in employment law, for a consultation at 304.523.8451.