New I-9 Form. Are You Ready?

On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) issued an updated version of Form I-9: Employment Eligibility Verification (Form I-9).  This form replaces all previous versions.  As of September 18, 2017, this new form is mandatory under Federal Law, for every employer that recruits, refers for a fee, or hires an individual for employment in the United States.  You can download the new form here.  Please note, clients utilizing our web-based HR Software, the new form is available in your account.  

The latest version brings very subtle changes to the form's instructions and adds to the list of acceptable documents.  Although the changes to the Form I-9 are minimal, failure to use the new form can result in significant fines.  Employers should not complete new forms for current employees as this applies to new hires only. Current storage and retention rules have not changed. 

Revisions to the Form I-9 instructions: 

• Changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section. 

• Removed “the end of” from the phrase “the first day of employment.” 

Revisions related to the List of Acceptable Documents on Form I-9: 

• Added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9. 

• Combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C. 

• Renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7. 

If you need assistance or have questions regarding Form I-9 compliance, please contact HR Solutions Group at 616.719.5372.  To sign up for a free demo of BambooHR Software, customized by HR Solutions Group, click here.   

Form I-9 Audits on the Rise

Written by: Melissa Morehouse, Consultant at HR Solutions Group of West Michigan

With a recent increased focus on immigration enforcement, it is anticipated that U.S. Immigration and Customs Enforcement (ICE) will increase Form I-9 administrative audits. Form I-9 audits can often result in significant fines to employers. Fines for knowingly hiring an unauthorized alien can range from $539 to $21,563 per unauthorized alien. Many employers do not realize that there are also fines for not properly completing the Form I-9. These fines can range from $216 up to $2,156 per form.

Initially, the three-page I-9 form appears straightforward to complete. However, there are 15 pages of instructions to accompany the Form I-9 that contain many specific details – which can easily result in mistakes. In fact, the U.S. Citizenship and Immigration Services publishes a list of 24 common mistakes made when completing the Form I-9.

What can you do to make sure you are compliant?

1.    Properly complete a Form I-9 with each new hire. You should have a company representative who is thoroughly trained in completing the Form I-9. Each new hire must complete the most recent version of the Form I-9 by the first day of employment. Old versions of the form are not valid. You can download the current form here. The company representative must physically review the actual identification document(s) (not copies) provided by the employee within 3 business days from the employee’s date of hire.

2.    Conduct an audit of Form I-9s on file. Form I-9s cannot be audited or corrected after being notified by ICE of an audit. However, you can and should audit and correct your Form I-9s annually to make sure you are compliant. It is recommended that self-audits are completed by someone other than the employee responsible for the initial verification. This helps identify any training opportunities and allows for a second review of the information completed.

3.    Correct any incorrect or incomplete Form I-9s. When making corrections to a Form I-9, it is important to follow proper protocol and clearly identify, initial and date the corrections. It is very important to understand the proper way to make corrections, because you can inadvertently create errors. Click here for tips to correcting the Form I-9.

4.    Follow proper retention of I-9s. You should keep completed Form I-9s secure and separate from employees’ other personnel records. You must have a Form I-9 on file for every employee on your payroll. The only exception are employees hired prior to 1986. Only approved personnel should have access to the I-9 Forms. Once an employee no longer works for your company, you must determine how long you are required to maintain their Form I-9. This is calculated by using whichever date is later, either 3 years from the employee’s hire date or 1 year from their termination date.

5.    Reverify when necessary. Under some circumstances, when an employee provides an employment authorization document (List A or List C Document) with an expiration date, you are required to reverify this information upon expiration. Additionally, you can reverify an employee that is rehired within 3 years of completing the original Form I-9, without having them complete the entire process again. The reverification section can also be used to update a legal name change. It is important to note that the most recent version of the Form I-9 must be used for reverification; although only Section 3 needs to be completed and retained with the original Form I-9.

If you need assistance or have questions regarding Form I-9 compliance, please contact HR Solutions Group to learn how we can help you reduce your Form I-9 exposure.

2017 Compliance Changes: Are you prepared?

Originally published December 2016.

Now is a great time to verify that your required Labor Law Posters are up-to-date.  In addition to the two updates to the Federal Labor Law postings in 2016, the Michigan minimum wage posting changed effective January 1, 2017.  Visit http://www.knowmyhr.com/order-workplace-posters  to purchase your up-to-date poster that is customized specifically for your group size.

January 22, 2017: New Form I-9

Are you ready? The new Form I-9 is marked with the date 11/14/2016 and must be used starting January 22, 2017. The form can be found here: https://www.uscis.gov/i-9. Employers who do not begin using the newly released form by January 22, 2017 run the risk of penalties, which have nearly doubled. The updated form must also be used for Reverifications.

The new form is very similar to the previous form. The list of acceptable documents and retention requirements remain unchanged. Additionally, the same guidelines for verifying the employment eligibility remain the same; the employer’s representative must be physically in the presence of the employee that is being verified, and must also see the original documents that are being provided. Employers must still allow employees to choose what forms of documentation they want to provide. 

What has changed? Significant changes include:

1.) If a data field on the form does not apply, and you would have previously left this field blank, “NA” must be entered into that field, as it may no longer remain blank. Example: the employee does not have an Apt. Number, “NA” must be used in that field.

2.) An electronic “smart” version of the form is now available. The new form is designed to flag errors and fields when information is missing on the form by alerting the user of what needs to be corrected. There are interactive tools built in to help answer questions or provide additional guidance on completing the form. If using this “smart” version, it is important to note that it still requires the form to be printed and signed manually. The form continues to be available in a printable paper format that can be downloaded and completed by hand.

3.)  Lessened administrative burden on foreign workers. Foreign nationals authorized to work in the U.S. may provide either their alien registration number, Form I-94 admission number or foreign passport number. Prior to the new form, both an I-94 number and foreign passport information were required.

4.) Employee is required to verify if they had a Preparer or Translator assist with preparing their form. Instead of leaving this section blank like previously done, the employee must verify by checking the applicable box on the form. It is important that that employer double check to make sure that the employee has checked a box. If the employee is using the “smart” version of the form and did use multiple Preparers and/or Translators to assist with the completion of the form, the employee may select the specific number of people that assisted, and the form will automatically modify to allow more designated space for each specific person.

February 1, 2017: OSHA Form 300A

It is time to start preparing your OSHA 300A Form!  Most employers with more than 10 employees must complete the following OSHA injury and illness recordkeeping forms:

·         The Log of Work-Related Injuries and Illnesses (OSHA Form 300),

·         The Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and

·         The Injury and Illness Incident Report (OSHA Form 301)

Certain low-risk industries are partially exempt. A list of low-risk industries can be found here:  https://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html

Employers are required to complete the Log (OSHA Form 300) and the Incident Report (OSHA Form 301) only if a recordable work-related injury or illness has occurred. However, employers must complete, sign and post OSHA’s Form 300A from February 1 to April 30.  Even if there were no recordable work-related injuries or illnesses during 2016, you must still complete and post Form 300A. This form must be posted in a common area where notices to employees are routinely posted.  Please keep in mind that only the Summary page of Form 300A must be posted. The OSHA Log (Form 300) must be available to employees, upon request.

July 1, 2017: OSHA’s New Electronic Reporting

In addition to the existing recordkeeping requirements, there are some new reporting requirements for 2017. OSHA now requires many employers to electronically submit data related to workplace injuries. A secure website to submit this data is scheduled to go live in February 2017 and the data is required to be submitted by July 1, 2017.  Starting in 2018, establishments with more than 250 employees will also be required to submit data from OSHA Form 300 and Form 301.

What are the OSHA Record Keeping Requirements for my company?  The chart below will help you identify requirements based on number of employees. Please keep in mind for OSHA purposes, the number of employees is determined per establishment.  An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed. The low-risk industries that are exempt from the recordkeeping forms, are also exempt from these requirements.

* A list of establishments in certain high-risk industries with 20 – 249 employees that must begin submitting electronic data can be found here: https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf

If you need assistance or have questions regarding any compliance items, please feel free to contact HR Solutions Group. The beginning of a new year is also a great time to review your employee files to ensure they are compliant. For information on how HR Solutions Group can help, contact us at 616.719.5372 or hrsupport@thehrsolutionsgroup.com.  

Email message for our outsourced clients (Attach Form 300A):

As a reminder, now is the time to start preparing your OSHA Form 300A.  The attached Summary page (Form 300A) is required to be posted from February 1 to April 30, in a common area along with the other notices that you display to employees. If there were no recordable work-related injuries or illnesses during 2016, you must still complete and post Form 300A. For most employers, OSHA is now requiring this information to also be submitted electronically by July 1, 2017.  The website is expected to be launched in February 2017 and we will notify you when it is ready. If you need assistance completing or submitting any of this information, please let me know. 

Alert! New Overtime Rules on Hold

Last week, a Federal court issued a nationwide injunction against the overtime rule that was set to take effect on December 1, 2016.  This injunction came as a surprise to most Lawyers and HR practitioners.  Most employers already had a plan in place for changes to be made or had implemented changes to be in compliance.     

What happens next? 

The Department of Labor may choose to contest this decision.  With the upcoming change in administrations, the DOL may decide not to contest the decision.  Until further notice, employers must continue to comply with the existing overtime guidelines and exemption rules.   

What do employers who haven’t taken action need to do? 

Employers planning to make changes to employees’ pay or status, to be in compliance with the new salary requirement, should still complete the FLSA duties testing to ensure compliance with existing regulations.  

• If the position meets the job duties requirements, the position remains Exempt. 

• If the position doesn’t meet the FLSA duties test, regardless of salary, the position should be classified as Non-exempt.     

What if changes were already made? 

Develop a communication strategy to support the action you plan to take.  Make sure employees understand the last minute changes and how it impacts their position. 

If you have questions about FLSA status or communication of the overtime rules to employees, please contact us at hrsupport@thehrsolutionsgroup.com.

New Labor Law Posting Requirements

Recently the DOL updated two labor law postings: the FLSA and the Employee Polygraph Protection Act (EPPA).  As a result, poster service companies are sending massive campaigns to sell you NEW posters.  If you don’t have a current Labor Law poster displayed and you have employees, then you should purchase a poster.  Maybe. 

The FLSA posting language regarding providing breaks for Nursing Mothers was updated, as well as a general statement about the use of Independent Contractors.  These updates are not new laws and are not new statutory requirements.  Additionally, Employers with less than 50 employees are exempt from the Nursing Mothers provision if it causes an undue hardship.  Also, the EPPA notice changes did not have any substantive information change, just the removal of the reference to fines and addition of a QR code.  Both notices were released without any warning and claim an immediate effective date of Aug. 1st.  This is not enforceable because these changes do not necessarily require the purchase of a new poster. 

All employers must display the required Federal & State Labor Law notices.  Here’s a list of things to consider before you hand over your credit card information to purchase a new All-In-One Federal & State Labor law poster.   

5 common errors when it comes to Labor Law Posters:

1.       Information on the Poster

There are 5 federal labor law notices, however, some of the notices only apply to certain employers. In Michigan, there are 7 state labor law notices required by all employers.  Most all-in-one posters available for purchase include more than the 12 possible notices.  Therefore, employers may be posting notices that don’t apply to their employees.

 2.       Location of Posters

Many federal and state laws require notices to be posted informing employees and applicants of their rights.  This means posters must be posted in a highly visible location in your business, not just a breakroom or area frequented by employees.

3.       Accuracy of Information

Postings must be updated each time there is a change or update to the law.  For example, Michigan had 2 law updates in 2016: Minimum Wage and Unemployment.  These are required to be on your labor law poster.  The EPPA revisions effective 8/1/16 are language (not law) changes, thus not required on your poster.  The FLSA language additions are recommended for Employers with more than 50 employees, but are not a statutory requirement.    It is important to frequently review posters for updates or to subscribe to a service that provides notifications when there is a required update. 

4.       Failing to Post at All

There are possible penalties for failing to post federal and state employment law notices.  Typically, a government agency will look for the required postings if they are on-site for an audit or investigation of a complaint.  Failing to have the required postings can result in fines up to $17,000.

5.       Highlighting Government Phone Numbers and Websites for Questions

Posters are often hung up without giving the content much thought.  Since the postings are intended to help ensure that employees can report their employers’ violations, they commonly highlight government hotlines or reporting websites.  It is in every employer’s best interest to be familiar with the information on the postings, and consider how they can encourage employees to come to them for information, before reaching out to a government agency.   

Know My HR, a Michigan firm, is the only company offering employee friendly, customized Labor Law posters for Michigan employers.  For more information on Michigan Labor Law posters, please visit www.knowmyhr.com or contact us at hello@knowmyhr.com

The Professional Non-exempt Workforce

The highly-talked about changes to Fair Labor Standards Act (FLSA) were released today with a December 1, 2016 deadline for compliance.  Almost every private company is subject to and impacted by FLSA law.  If you haven’t already evaluated the impact on your workforce, it’s time to start. 

The new regulations are spurring conversations and decisions on wages, overtime costs, policy, time keeping practices and perceived employee demotion to hourly status.  While the new laws may not seemingly impact every organization at the same magnitude, we see this as a great opportunity for companies to look at their pay practices when it comes to salaried and hourly employees.   

Unbeknownst to many, exemption status is one of the largest compliance violations in small to mid-sized companies.  While not purposeful, it's just lack of understanding of the laws.  Companies simply cannot choose a job to be exempt. Many attempt to make a job exempt by adding in a few extra duties or a direct report.

These items do not make a job exempt

• College degree required
• A direct report
• Advanced knowledge application
• Discretion with customers and vendors 

HR Generalist, Office Manager, Helpdesk Technician, Executive Assistant, Maintenance Technician, Customer Service Lead are all positions that rarely fully meet exemption test before & after the FLSA law change.

The Fair Labor Standards Act has a set of guidelines, written decades ago, that provide testing rules to employers on what positions have the right to be paid overtime in a work week.  With all the big hype of the updates, the biggest disappointment was the lack of an overhaul of the duties tests.  The duties tests remain antiquated and are not reflective of the complexity of the way companies work.  

The notable change is the updated thresholds of pay - the final rule requires employees to be paid a minimum of $47,476 to qualify as exempt & must be over $134,004 for highly compensated employee exemption.  With all the media hype on the changes, employees will now question whether or not they have been paid fairly - therefore potentially increasing your risks of wage & hour claims.  

Steps to take now

1. Update (or create) accurate job descriptions
2. Establish a professional non-exempt classification in your handbook
3. Have the positions professionally evaluated for exemption status & keep a copy of the completed test on file
4. If position meets exemption standards and the current pay is below minimum threshold, consider amount of overtime typically worked vs. the costs to increase salary
5. If a position doesn’t meet exemption standards, the position should be changed to non-exempt status 
6. Develop your communications for employees to help them understand the changes in the law and the impact on their pay or employment status

'Professional Non-Exempt' is not the same as 'Hourly'

Don't run out and buy a time clock or start treating office based professional positions like they work on a production line.  These are professional positions for professional people who still want to be treated like a professional.  

• Let the employees know that their positions have recently been reviewed in light of the new FLSA changes, and that they will now be eligible for overtime for actual hours worked over 40 in a work week.
• Check your employee handbook to make sure you pay overtime only for actual hours worked, not inclusive of holiday, sick or vacation pay. 
• Update written policy and communicate to employees how to report work hours over 40 in a work week.
• Have employees sign an acknowledgement that they understand their obligation to report time.
• Pay all reported work hours over 40 at time and a half.
• From a payroll practice, you can still default to pay 40 hours per week.  
• You can allow them to manage their time to maintain a full work week. 
• Watch your overtime hours, if non-exempt employees consistently work overtime, you should look at your staffing plan and work responsibilities.

Companies are going to be pushed to be more strategic with work assignments, staffing plans, and maximizing the workflow and cost of labor.  It's simply too costly not to.  

HR Solutions Group of West Michigan can assist you with evaluating the exemption status of your professional and lead positions as well as help you with the implementation of HR software that will make tracking time and payroll expenses easier to manage.