• If an employee has had an interruption in employment and the employee was expected to return, previously completed Forms I-9 should be maintained and stored.
• If an employee has been terminated and then rehired within three years of the original Form I-9 completion, the employer may choose to retain or replace the original form.
• Several factors must be considered when considering an employee for continued employment, including policy compliance, employment status, etc.

In certain situations, a “new” hire is not considered to have taken place despite an interruption in employment. In case of an interruption in employment, the employer should determine whether the employee is continuing in employment and if the employee has a reasonable expectation of employment at all times.

If it is determined that an employee had a reasonable expectation of employment at all times, the employer should continue to maintain and store the previously completed Form I-9 as if there were no interruption in employment. It is advisable to inspect the previously completed Form I-9 and, if necessary, update the form or conduct a reverification.

If, on the other hand, the employer determines that the employee was terminated and is now rehired, and the rehire occurs within three years from the date the original Form I-9 was completed, the employer may have an option to complete a new Form I-9 or rely on the original Form I-9.

The following situations constitute continuing employment:

• Approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer;
• Promotions, demotions, or pay raises;
• Temporary layoff for lack of work;
• Strikes or labor disputes;
• Reinstatement after a disciplinary suspension for wrongful termination found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement;
• Transfer from one distinct unit of an employer to another distinct unit of the same employer (the employer may transfer the employee’s Form I-9 to the receiving unit); or
• Seasonal employment.

Continuing employment also includes 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. A related, successor, or reorganized employer includes:

• The same employer at another location;
• 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; and
• Employers who have acquired or merged with another company.

Considerations for continuing employment: To determine whether an employee is continuing employment and had a reasonable expectation of employment at all times, the employer should consider several factors, including, but not limited to:

• Whether the individual was employed on a regular and substantial basis. A determination of a regular and substantial basis is established by a comparison of other workers similarly employed by the employer;
• Whether the individual complied with the employer’s established and published policy regarding the absence;
• Whether the employer’s past history of recalling absent employees for employment indicates a likelihood that the individual in question will resume employment with the employer within a reasonable time in the future;
• Whether the former position held by the individual has been taken permanently by another worker;
• Whether the individual has sought or obtained benefits during the absence from employment with the employer that are inconsistent with an expectation of resuming employment within a reasonable time in the future;
• Whether the financial condition of the employer indicates the ability of the employer to permit the individual in question to resume employment within a reasonable time in the future; and/or
• Whether the oral and/or written communication between employer, the employer’s supervisory employees, and the individual indicates that it is reasonably likely that the individual will resume employment within a reasonable time in the future.