For years, employers have struggled with properly completing the requirements of the I-9 Form.  Every employee hired after November 6, 1986 must have an I-9 Form on file with the employer.  The Form is proof that the employer has examined documents sufficient to establish the employee’s right to work in the United States.  While the purpose of the I-9 is relatively straightforward, some large employers have faced fines amounting to hundreds of thousands of dollars for errors these Forms.

With the electronic Form’s release on July 17, 2017, many of the violations that created liability should be a thing of the past.  The new form provides drop down boxes which offer options in filling out sections of the form.  The options will help in eliminating some of the common errors employers have made in the past like properly completing sections on; citizenship, immigration status, document title and state of residence.  The form’s electronic version also provides instructions for completing each section when the user clicks on the question mark in that section.

In spite of these revisions which are designed to assist in preparation of the form, some employers have chosen to print the form and fill it out on paper.  As a result, many easily avoidable mistakes remain an issue.  We advise clients to fill out the form on a computer if at all possible, thus taking advantage of the individualized instructions and drop down boxes in each section of the new I-9 Form.  We note as well that the “N” at the end of the release date in the bottom left hand corner of the form means that it is the only version currently authorized for use.  Finally, we continue to see employees who use E-Verify failing to fill out I-9s in the mistaken belief that participation in the E-Verify program releases them from the requirement to have an I-9 for each employee.  It does not.  You must prepare a new I-9 for every employee regardless of whether you participate in E-Verifying.

The new electronic I-9 Form is available at USCIS website. Use it online and make your lives easier.

Employers with more than 100 employees and federal contractors are probably more than familiar with the EEO-1 reporting requirements, but those requirements are about to change. On July 13, 2016, the Equal Employment Opportunity Commission published a revised version of a proposed rule to broaden the scope of data collected in the EEO-1 report. Earlier this year, the EEOC issued an initial version of the proposed rule, which would have required additional reporting on each of ten categories of employees and pay information reported by race and gender.  The July 13 version of the rule contained some key changes.

Changes to Proposed Rule

Under the new proposal, the EEOC will require reporting on an employer’s established pay ranges for positions and hours worked. In response to the comments received regarding the initial proposal, the revised proposal proposes moving the due date for filing the required report from September 30, 2017 to March 31, 2018. This change will allow employers to use employee’s W-2 earnings for reporting. Because of the revisions to the proposal, a new 30 day notice and comment period commenced with the release of the new revised proposal in the federal register.

Purpose of Data Collection

EEOC explained that it intends to use pay data for early analysis of discriminatory complaints. Investigators will examine the data for pay disparities and perform statistical analyses, yet to be determined in order to investigate whether compensation discrimination appears likely. EEOC has further stated that it will compare periodic reports on pay disparities by gender and race based on the data. Finally, the agency will use the data to enhance its support for training programs by, among other things, providing supporting evidence for training programs.

What Should I Do Now

EEOC actually pays attention to the comments it receives as is evidenced by the new revised proposed rule. We strongly encourage employers to make comments on the hardships the proposed revised rule would create. EEOC has remained silent on how it will account for the merit based non-discriminatory factors that could lead to differences in pay in the same job category. This is an issue we suggest employers should press heavily in their comments. Tenure, skill sets and even the broad nature of the job categories themselves can be pivotal in determining wage differences. Stay tuned, we will likely see more changes when the final rule is published.

 

On June 14, 2016, the Office of Federal Contract Compliance Programs (“OFCCP”) released its updated final rule regarding sex/gender discrimination. The stated purpose of the update was to revise OFCCP’s decades old guidance which was, at some level, in conflict with certain new principles currently espoused by EEOC. For example, OFCCP’s old rule required covered contractors to provide separate bathrooms for men and women.

Oh how times have changed!

The new rules do some reiterate well-known requirements that personnel actions may not be taken on the basis of gender. The rule also reminds contractors that distinctions between married and unmarried persons in the workplace, without applying them equally to men and women, are unlawful.

With respect to gender identity, the rule explains that contractors may not make facilities and employment-related activities available only to members of one sex. Significantly, the rule provides that if a contractor provides showers, changing rooms, restrooms or other similar facilities, the contractor must provide same sex or single user facilities as well. The rule goes on to state that employers must allow employees to use the facilities consistent with the gender with which they identify. It also makes it unlawful to discriminate against applicants based on the applicant’s receipt of “transition-related medical services.”

The final portion of the rule covers some nonbinding best practices recommended by OFCCP including avoiding the use of gender-specific job titles such as foreman or linemen.

While the revised rule addresses a number of other issues regarding sex discrimination, harassment and pay discrimination, the revisions related to gender stereotypes and gender identity seem to be the largest change. The rules are effective August 14, 2016. They apply to all covered government contractors with contracts of $10,000 or more. The final rule is available here.

Covered contractors should note that the rules will likely require some changes to their restroom facilities and should plan accordingly. As always, the true impact of these rules will not be fully understood until courts begin to rule on their implementation. Stay tuned.

The United States Department Labor recently issued a Notice of Proposed Rulemaking to enforce President Obama’s September 2015 Executive Order establishing paid sick leave for federal contractors. Now that we have been able to digest the lengthy proposed rules, we wanted to share some of our thoughts about the proposed rules with you.

What do the proposed rules say?

The proposed rules require certain federal government contractors and subcontractors to annually provide their employees with up to seven (7) days of paid sick leave. The leave can be utilized for the employee’s own illness, to attend a doctor’s appointment, to care for a sick family member, or for absences related to domestic violence, sexual assault, and stalking.

If finalized, when will the proposed rule go into effect?

If the proposed rule is not challenged, it is expected that the rules will apply to certain contracts entered into with the federal government on or after January 1, 2017.

Will this proposed rule impact every federal contractor?

No. It will only impact four types of contractual agreements: 1) procurement contracts for construction covered by the Davis-Bacon Act; 2) service contracts covered by the Service Contract Act; 3) concessions contracts for services on federal lands (i.e. the snack stand at a national park); and 4) contracts in connection with federal property or land rentals/leases. So, if your company manufactures widgets for the federal government, the proposed rule likely does not apply to you. However, if your company is constructing a building for the federal government, providing a service to the federal government, renting space from the federal government or vice versa, your company is probably covered by the new rule.

Does the proposed rule apply to all employees or just the employees servicing federal contracts?

The proposed rule only applies to persons engaged in performing work on a covered federal contract. The regulations provide that an employee who spends more than 20% of his/her working time performing services in connection with a covered federal contract is also covered under these rules. However, as a matter of practice, it may be difficult to explain to your workforce why some employees are entitled to paid sick leave and others are not.

Under the rule, will employees automatically be entitled to paid sick leave?

No. The rule requires contractors to allow employees to accrue at least one (1) hour of paid sick leave for every 30 hours worked on a covered federal contract. The proposed rule envisions that contractors will be able to limit the amount of paid sick leave to 56 hours each year but must permit employees to carry over accrued, unused paid sick leave from one year to the next. Even though rollover is required, a contractor can prevent an employee from accruing additional sick leave in excess of 56 total hours.

The proposed rule requires the contractor to provide employees with at least a monthly update on the amount of paid sick leave the employee has accrued but not used. Employees will be permitted to take sick leave in increments of no greater than 1 hour.

How does an employee request paid sick leave under the proposed rule?

The proposed rule requires that the employee request (orally or in writing) the ability to take leave at least 7 calendar days in advance of foreseeable leave and as soon as practicable in all other cases. Worried the employee is faking it? The proposed rules only allow a contractor to require certification from a physician or other provider if the absence is for three or more consecutive days.

Is this really a big deal?

Assuming the new rules apply to your business, probably! Most American business already provide some type of paid time off or paid sick leave to their employees—and most provide in excess of seven (7) days. The Department of Labor estimates that this new proposed rule will only impact a relatively small number of people—about 437,000 employees—who currently receive no paid sick leave. But, because the proposed rule provides specific instructions regarding accrual, use, requests for leave, and rollover, this rule could impact how many employers administer their PTO and/or sick leave policies. The provisions regarding domestic violence, sexual assault, and stalking are also unique.  If certain requirements are met, a contractor’s existing paid sick leave or PTO policy could meet the requirements of the rule.

How can I let the federal government know my feelings on the proposed rule?

Provide comments by clicking on this link. You have until April 12, 2016 to do so.

Interested in learning more? Check out this Department of Labor Fact Sheet, shoot us an email, or give us a call. As this proposed rule moves toward final implementation, we are happy to assist you in developing a sick leave and/or PTO policy that complies with the President’s Executive Order.

 

The federal government’s enforcement efforts relating to equal pay are intensifying after President Obama’s recent announcement that the Equal Employment Opportunity Commission (EEOC) will begin to collect expanded information on pay data and hours worked from employers with 100 or more employees completing the annual EEO-1 form.

As we have previously reported on this Blog, the Obama Administration has taken unprecedented action over the past two years to increase the number of requirements imposed upon companies with federal contracts or subcontracts. These requirements have ranged from increasing the minimum wage for employees of federal contractors/subcontractors to $10.10/hour (now $10.15), new protections for LGBT workers, mandatory paid sick leave, and new regulations regarding pay transparency. Experts expected that the Administration would announce a rule for collection of pay data from federal contractors but most were floored when the President announced on January 29, 2016 that all businesses with 100 or more employees would need to provide pay data to the EEOC and the Office of Federal Contract Compliance Programs (OFCCP).

The EEO-1 report is an annual survey completed by most federal contractors and all employers with at least 100 employees. The survey requires employers to provide data on employees by job category, sex, race, and ethnicity. The EEOC announced that beginning with the report due on September 30, 2017, the EEO-1 report will be revised to include expanded information on pay data and hours worked. Pay Data will also be collated based on gender, race, and ethnicity. The new Section of the form can be found here. Per the EEOC, once the information is gathered, the data will be used to investigate discrimination complaints, identify pay discrepancies among males/females and minorities/non-minorities across various industries and job classifications, and to discover discriminatory pay practices. The Commission also intends to aggregate and publish the data in order to allow employers to evaluate their own pay practices to ensure compliance.

Secretary of Labor Thomas E. Perez said that the government cannot ensure equal pay unless it has “the best, most comprehensive information about what people earn.” We sincerely doubt that this new burden will do much to combat pay discrimination and that the information will have no practical utility in combating pay disparities. Those familiar with the EEO-1 form know that employees are divided up into 10 incredibly broad job categories. Within these broad categories, the EEOC has identified 12 pay bands for purposes of government reporting.

Comparing the W-2 wages of employees based on these broad categories, without the opportunity to demonstrate legitimate, non-discriminatory reasons or any context for pay decisions, will surely raise a red flag with the EEOC and could result in unnecessary and unproductive investigations. For example, your company might place all engineers into the “Professionals” category. If you have a female engineer who has worked for your company for 5 weeks making $129,000/year and a male engineer who has worked for your company for 5 years making $163,000/year, the EEOC’s metric will surely indicate potential gender discrimination when it is clear that no such discrimination has occurred (because the male has 5 more years of experience than the female).

Continue Reading EEOC Announces Proposed Collection of Pay Data with EEO-1 Reports

Recently, an agricultural company faced more than $100,000 in fines after U.S. Immigration and Customs Enforcement (ICE) auditors identified more than 100 substantive violations – each carrying a $1,100 maximum penalty.

Not only did the fine impact the company’s bottom line, but the violations created the likelihood of more stringent oversight from the government and the possibility of steeper fines for future errors pertaining to an employee’s work status.

The federal government has again begun to crack down on companies that employ undocumented workers, and the financial consequences for businesses can be catastrophic.

Employees are required to confirm workers’ eligibility for employment by completing Form I-9, but there are ways undocumented workers can circumvent this process, including fraud and identity theft. Businesses that rely on subcontractors, such as employment agencies, face even greater risks because they often cannot independently review and confirm each employee’s eligibility. Nondiscrimination laws can also make it difficult for businesses to dig too deeply into an employee’s status when a potential I-9 discrepancy is identified.

The federal E-Verify program was created in 1997 to help businesses determine employment eligibility.  Many business owners believe participating in E-Verify offers them protection against prosecution, but that is not always the case. E-verify creates a rebuttable presumption that you have not knowingly violated the law.

Using this system essentially enters a company into a contract with the federal government, and a business must be aware of all of its responsibilities under this agreement. A business that fails to meet program requirements is just as susceptible to corrective action as a company that elects not to use the system.

Here are three ways you can limit the threat to your company from the hiring of undocumented workers:

1. Conduct regular I-9 reviews

Many businesses fail to review I-9 forms until an ICE audit is scheduled. At that point, an assessment is too late. Businesses should establish an ongoing internal review plan to be conducted at regular intervals. Larger companies that might have trouble reviewing all I-9 forms each year can still show a reasonable commitment by creating a policy to review 10 to 15 percent of forms annually.

In addition to identifying potential mismatches, a regular review process might be helpful in demonstrating to federal investigators that the company is taking meaningful steps to prevent violations.

2. Establish a policy to terminate employees who misrepresent employment status

A written policy calling for the termination of employees who are not honest during the hiring process also signals a good-faith effort to comply with the law. A lack of a clear policy can create the appearance that a business is complicit in employing undocumented workers, which will lead to larger fines and increased scrutiny.

It is crucial for employers to implement the policy consistently to minimize the risk of violating anti-discrimination laws. Navigating this legal gray area might require the advice of an attorney who understands the complexities of immigration and employment law.

3. Include an indemnification clause in labor contracts

Temporary employment agencies are responsible for determining a person’s eligibility for employment, but businesses that use their services can be held financially responsible and may even be considered joint employers, if the employment agency doesn’t perform its due diligence. However, a business can take steps to protect itself by including a clause in the contract that holds a contractor financially responsible for any damages resulting from the co-employment of an undocumented worker.

On January 28, President Bush expanded leave entitlements under the federal Family and Medical Leave Act (FMLA) through his signing of the National Defense Authorization Act (NDAA) for Fiscal Year 2008. (The NDAA is an annual act that authorizes various requirements for National Defense.) The FMLA leave provisions incorporated into the law are designed to provide assistance to service members and their families with some of the hardships that can result from military service. The two new categories of leave are "caregiver leave" and "active duty leave." It is important to note that only the "caregiver leave" portion of the law is effective immediately. The "active duty leave" portion will not be effective until the Secretary of Labor publishes guidance and procedures for such leave.

Caregiver Leave: This portion of the NDAA allows a "spouse, son, daughter, parent or next of kin" to take up to 26 weeks of leave to care for a member of the Armed Forces, including a member of the National Guard and Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise on outpatient status, or is otherwise on the temporary disability retired list, for serious injury or illness. Employers may still implement FMLA procedures like requiring substitution of paid leave and notice, for example. The leave is available on an intermittent basis, but is only available for use in a single 12 month period.

Active Duty Leave: This category of leave would address situations in which an employee faces "any qualifying exigency" arising out of the fact that the "spouse, or son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty." The term "any qualifying exigency" has not yet been defined by the Secretary of Labor and this provision will not be effective until definitive regulations are published. In the interim, the Department of Labor encourages employers to use good faith efforts to provide active duty leave to qualifying employees.

Employers will need to amend their FMLA policies to incorporate the new provisions and add the insert to their current FMLA poster.