Our most recent hire worked for almost a full week before it was discovered that she failed to meet I-9 eligibility criteria. How are we supposed to pay her?
It is a challenge to pay someone for work performed when there is no proper documentation, but she must be paid, period.
The Department of Labor’s (DOL) states “work not requested but suffered or permitted to be performed is work time that must be paid for by the employer…The reason is immaterial. The hours are work time and are compensable.”
And, regardless of her I-9 status, the Internal Revenue Service (IRS) expects you to withhold payroll taxes.
There’s really only one way to avoid this type of situation and that is by planning carefully. Here are some tips to follow in order to ensure there is no violation of the Fair Labor Standards Act or IRS rules:
- Pay the employee to ensure you fulfill the requirements of DOL and IRS. You may pay the wages owed the employee in cash or by check (via the company’s payroll system) minus the amount deducted for taxes.
- When hiring, be sure to require work authorization PRIOR to the commencement of work
- Obtain and complete ALL paperwork on new employees BEFORE any work is performed, which of course includes the I-9. And, be sure Payroll has a copy of the employee’s Social Security card on file