A new rule concerning hiring practices in West Virginia conflicts with federal regulations and may be confusing to employers.
The legislation alters the Form I-9 process in West Virginia in ways that don't exactly line up with federal employment eligibility verification requirements. This could be confusing to employers, who almost certainly would like to avoid the fines that can come with violating federal hiring regulations.
Employers could run into problems due to the conflict between federal and West Virginia hiring regulations.
The numerous conflicts between West Virginia and US hiring rules
The first amendment to state hiring regulations that conflicts with federal rules concerns when an employer should complete the Form I-9. Nationwide, the rule is that the form should be completed within three days of an individual's hiring. The Form I-9 should not be completed any later than that, nor should it be filled out prior to the new hire's first day on the job. However, the new West Virginia rule requires employers to fill out the Form I-9 before entering into an employment contract with an individual or prior to his or her first day at work. Businesses that decide to comply with the West Virginia regulation would end up violating the Immigration and Nationality Act.
Additionally, the new hiring rules touch on the sort of documents that new hires can present to employers during the employment eligibility verification process. The problem is, the documents outlined by the state regulation aren't the same as those listed in the federal requirements. Some of the document descriptions are vague as well, and don't mention document origin. One document description reads "a valid permit issued by the United States Department of Justice." The lack of specific documents on the list could lead to issues and claims of hiring discrimination. Employers aren't allowed to ask for specific documents, and have to accept any that appear reasonably genuine. However, if they're not sure exactly which they should and shouldn't be taking during the hiring process, subsequent allegations of noncompliance could arise. The federal list of accepted documents is much more specific than West Virginia's. It includes U.S. passports, permanent resident cards and employment authorization documents with photos, among many others.
"Employers should stick to complying with federal requirements."
One more amendment to West Virginia hiring regulations could lead to issues. The new rules require that employers hold on to employees' records for at least two years after they have left the company or been terminated. Meanwhile, federal provisions mandate that businesses keep completed Form I-9s for at least three years after the new hires' starting dates, or one year after termination dates. If an employer gets rid of a Form I-9 according to West Virginia hiring regulations in violation of federal requirements, the business could be subjected to fines.
Attorney recommends sticking with federal hiring provisions for now
Caroline Tang, an associate with Ogletree Deakins, explained that until the conflict between state and federal regulations is straightened out employers should stick to complying with federal requirements. A business that chooses, instead, to comply with West Virginia hiring rules could end up penalized for not complying with federal hiring provisions. U.S. Immigration and Customs Enforcement has handed out hefty fines for missing Form I-9s, document discrimination and not following the three-day requirement for filling out the employment eligibility verification forms.
The best way to avoid the sort of fines that have been handed out to companies in the past would be to stick with federal hiring regulations, rather than following West Virginia's recently amended rules.