Continuing Employment

Employers must complete a new Form I-9 when a “hire” takes place. Under DHS regulations, a hire will not be considered to have taken place if the employee is continuing in his or her employment and has a reasonable expectation of employment at all times. There are eight situations when an employee may be continuing in his or her employment.  If an employee is:

• On an approved paid or unpaid leave because of:
  • Study
  • Illness or disability of a family member
  • Illness or pregnancy
  • Maternity or paternity leave
  • Vacation
  • Union business
  • Other temporary leave approved by the employer
• Promoted, demoted, or gets a pay raise
• Temporarily laid off for lack of work
• On strike or in a labor dispute
• Reinstated after disciplinary suspension for wrongful termination, found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement
• Transfers from one distinct unit of an employer to another distinct unit of the same employer, the employer may transfer the individual’s Form I-9 to the receiving unit.
• Continues his or her employment with a related, successor, or reorganized employer, provided that the employer obtains and maintains from the previous employer records and Forms I-9 where applicable.  This includes the same employer at another location or an employer who continues to employ some or all of a previous employer’s workforce in cases involving a corporate reorganization, merger, or sale of stock or assets.
• Engaged in seasonal employment.

To determine whether an individual can reasonably expect employment at all times, it might be helpful to answer these questions:

• Was the individual employed on a regular and substantial basis similar to others in the same job?
• Did the individual comply with the employer’s established and published policy regarding temporary absences?
• Based on the employer’s past history, is it likely that the employer will call the individual back to work within a reasonable time?
• Will the individual’s job be available when he or she returns or has it be taken over permanently by another worker?
• Has the individual sought or obtained benefits during the absence from employment that are inconsistent with an expectation of resuming employment within a reasonable time in the future (e.g., severance and retirement benefits)?
• Does the financial condition of the employer indicate its ability to permit the individual to resume employment within a reasonable time in the future?
• Does communication between the employer and the individual indicate that it is reasonably likely that the individual will resume employment within a reasonable time?

These are factors to consider when determining whether the individual can reasonably expect employment at all times.

Form I-9

A new Form I-9 is not required for employees who have continued in employment and can reasonably expect employment at all times upon their return to work.

For employees who have not been continuously employed and/or did not have a reasonable expectation of employment at all times, a “hire” is considered to have taken place upon their return to work.  If this occurs within three years from the initial hire, then the procedures for rehires may be followed.  Otherwise, a new Form I-9 must be completed.