New Form I-9:

USCIS just announced that it will publish the long-awaited new Form I-9 on August 1, 2023.  Once released, the new form will be published on the USCIS website:  Employment Eligibility Verification | USCIS.  If you look at the bottom on each page the date should be updated from 10/21/2019 to 08/01/2023.

To allow for some transition time, employers can use either the current Form I-9 (Rev. 10/21/19) or the new Form I-9 (Rev. 08/01/23) through October 31, 2023. Beginning November 1, 2023, only the new Form I-9 will be acceptable for new hires and verifications.

Changes to the Form I-9 are extensive, and are expected to include:

• Reduces Sections 1 and 2 to a single-sided sheet.

• Moves the Section 1 Preparer/Translator Certification to a separate standalone document to be provided when needed.

• Moves Section 3 (Reverification and Rehire) to a separate standalone document that can be provided when a rehire occurs or a re-verification is required.

• The form has been re-designed for tablets and mobile devices as a fillable form that can also be easily downloaded.

• Removes the requirement to enter “N/A” in certain fields.

• Revises the Lists of Acceptable Documents page to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documents.

• A new box has been added that employers must check if they examined the documentation remotely under the new alternative verification procedure instead of an in-person physical examination.

• Reduces the instructions from 15 pages to eight pages and streamlines some of the steps.

Action Item: Update your I-9 verification processes and training to ensure that employees conducting I-9 verification understand the new form and guidelines and begin using the new form for all new hires and verifications by November 1, 2023, at the very latest.

Form I-9: Remote Verification Option / “Alternative Procedure”

Under existing Department of Homeland Security rules, employers must examine identity and work authorization documents in person (the Covid-related “flexibilities” expire July 31).  However, DHS just authorized a new remote verification option for qualified employers who use and comply with E-Verify, known as the “Alternative Procedure”.

To use the Alternative Procedure, you must be a “qualified employer”, meaning that you must be enrolled in E-Verify for the hiring worksite using the alternative procedure, be in good standing with E-Verify, and comply with all E-Verify requirements.  The alternative procedure must be offered to all employees at that site but can be differentiated to apply only to remote employees, with in-person inspection for onsite and hybrid employees. In other words, employers can’t choose when to use remote or in-person verification based on a person’s or group of employees’ citizenship or immigration status, national origin, or any other protected characteristic.

Alternative Procedure Steps

A qualified E-Verify employer must take the following steps within three business days of an employee’s first day of employment:

1. Receive and examine (front and back if two-sided) copies of the employee’s Form I-9 documents (or an acceptable receipt) and determine if the documents reasonably appear to be genuine.

2. Conduct a live video meeting with the employee. The employee needs to bring the same documents that they sent to the employer so the employer can ensure that they reasonably appear to be genuine and relate to the employee.

3. Check the box on the new Form I-9 indicating that an “alternative procedure” was used to examine documentation to complete Section 2 or reverification. If an employer is using the old form prior to November 1, they should write “alternative procedure” in the Additional Information field in Section 2.

4. Retain clear and legible copies (front and back if two-sided) of all documents that the employee sent to complete Form I-9, regardless of whether the documents are from List A, List B, or List C.

5. Create an E-Verify case.

Employers must perform an in-person examination for those employees unable or unwilling to participate in the remote verification process. This could arise when new employees don’t have access to the necessary technology or are uncomfortable transmitting sensitive personal information electronically, particularly if the employer hasn’t provided a secure way for them to do so.

The Alternative Procedure and COVID-19 Flexibilities for Employers Enrolled in E-Verify

Employers who are required to re-verify employees who were documented remotely under the Covid-19 flexibilities may use the Alternative Procedure to comply with the August 30 reverification deadline only if certain conditions are met:

• They were enrolled in E-Verify at the time the remote examination for a new hire or a reverification occurred.

• They created an E-Verify case for the employee (except in the case of a reverification).

• They performed the remote inspection between March 20, 2020, and July 31, 2023

Employers should follow the alternative procedure steps and write “alternative procedure” and the date of the live video meeting on Form I-9 in Section 2 in the Additional Information box (or the section used for reverification if applicable).  They should not create a new case in E-Verify.

Employers not enrolled in E-Verify at the time of the remote examination must still complete an in-person physical examination by August 30.

Action Items

1. If you aren’t using E-Verify but want to utilize the Alternative Procedure going forward, begin the E-Verify enrollment process now.

2.  Update your E-Verify processes and training to ensure that employees conducting I-9 verification understand how to comply with E-Verify, as well as the Alternative Procedures and guidelines.

3.  If you are using E-Verify and performed a remote inspection under the Covid-19 flexibilities between March 20 and the July 31 expiration date, complete the required re-verification under the Alternative Procedure by August 30.

Federal Contractors: Reminder that the new Voluntary Disability Self-Identification Form is now in effect and should replace any existing form.  The revised form in multiple languages is available on the Department of Labor/OFCCP website:  Voluntary Self‐Identification of Disability Form | U.S. Department of Labor (dol.gov).  Keep in mind that almost all modifications or changes to the form (all the way down to the font size) are generally prohibited.

OSHA: This month OSHA announced an updated rule (eff 1/1/24) affecting employers in “high-hazard” industries with 100+ employees.  In addition to OSHA Form 300A, these employers will be required to submit both their OSHA Form 300 and Form 301 electronically using OSHA’s Injury Tracking Application.  OSHA will also require them to include their company name on their electronic submission and then intends to make the data publicly available in a searchable online database (excluding some data subject to privacy rights).  The affected “high-hazard” industries are listed in the federal register by NAICS codes and include a wide range of businesses such as Bakeries and Tortilla Manufacturing (3118), Agriculture (3331), Warehousing and Storage (4931), Continuing Care Retirement Communities and Assisted Living Facilities for the Elderly (6233), and Amusement Parks and Arcades (7131). All employers with 100+ employees should check the list to determine whether it includes their NAICS code and update their OSHA data collection procedures to ensure that they are compliant, easily converted to electronic form, and do not discourage injury and illness reporting.

STATE/LOCAL UPDATES

California

Wage Orders.  California is reviving the Industrial Welfare Commission after almost 20 years of it remaining unfunded.  The IWC was responsible for creating and updating California Wage Orders that still govern the wages and working conditions of employees today but ceased operations in 2004.  Because of this, the IWC Wage orders have not been updated since 2001.  That is about to end.  The agency has been allocated $3,000,000 and is expected to convene industry-specific wage boards to adopt new and revised pro-employee changes in late 2024, with a special focus on industries where 10% or more employees are at or below the federal poverty level.

PAGA/Arbitration.  The CA Supreme Court threw another twist into the ongoing litigation questioning whether an individual can file a PAGA claim in court if they have signed an agreement requiring them to arbitrate their individual claim (PAGA is the Private Attorneys General Act, a CA state law that allows workers to sue businesses on behalf of themselves, other workers, and the state itself when they believe there has been a violation of the law).

Although employers celebrated the recent US Supreme Court Viking River Cruises decision that upheld arbitration agreements for individual claims not too long ago, that decision essentially left this final question up to the CA Supreme Court.  That court just held that an individual can in fact proceed with a PAGA claim in court separate from their individual claim regardless of any arbitration agreement, subject to the outcome of the arbitration proceeding.  This essentially forces employers to defend the claim in arbitration (assuming they have an arbitration agreement), and if they lose, they then must defend against the PAGA claim in court.

The good news is that voters may intervene in the November election by voting for the “California Fair Pay and Employer Accountability Act of 2024”, which would eliminate PAGA altogether and replace it with increased DLSE enforcement.  In the meantime, due to the highly technical, complicated, and legal nature of these court decisions, employers should consult with their employment counsel to update their arbitration agreements and understand how they may be affected by recent developments.

Delaware

Paid Family and Medical Leave.  Although contributions to Delaware’s Healthy Delaware Families Act (paid family and medical leave) are not scheduled to begin until January 1, 2025, and benefits won’t commence until January 1, 2026, the Delaware Department of Labor’s Division of Paid Leave is ahead of the game and recently published initial rules.  The rules include some early deadlines coming up January 1st that employers don’t want to miss, including (i) requests for exemptions due to grandfathering certain existing employer plans, and (ii) employers with 10 to 24 employees may temporarily reduce the Parental Leave maximum benefit duration from 12 weeks to a minimum of 6 weeks for claims submitted prior to January 1, 2031. To qualify for this option, employers must notify the Division of their intention to do so by January 1, 2024, and they must notify their employees of this decision in writing no later than December 1, 2024.

Hawaii

Pay Transparency: Effective January 1, 2024, Hawaii will join the growing number of states and localities mandating that certain large employers disclose the hourly rate or salary range for positions they post.  In Hawaii, this means that employers with 50+ employees must include in all postings the pay rate that “reasonably reflects the actual expected compensation”.  The legislature did not define “reasonably reflects” or specify how that provision should be interpreted.  It also did not specify whether the 50-employee requirement includes all employees of the employer or only those in the state of Hawaii.  It did, however, decline to include internal transfers or promotions like some other states.

The new law also expands Hawaii’s existing equal pay requirements by prohibiting an employer from paying employees in “any protected category” listed in Hawaii’s employment discrimination statute less than it pays other employees for “substantially similar work” (as opposed to “equal work”).  Hawaii’s protected categories currently include race, sex (including gender identity or expression), sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, reproductive health decision, or domestic or sexual violence victim status.  “Substantially similar work” includes work performed under similar working conditions that requires equal skill, effort, and responsibility.  The legislature did not change the current law that allows payment differentials when due to a seniority or merit system, a system that measures earnings by quantity or quality of production, a bona fide occupational qualification, or another permissible factor other than membership in a protected category.

New Jersey

Termination Documents:  Effective July 31, 2023, in addition to the benefit instructions notice (Form BC-10) to a separated employee disclosing the date on which unemployment begins, employers will be required to simultaneously provide notice to the Division of Unemployment.

Temporary Workers: The New Jersey Temporary Workers’ Bill of Rights that passed this year establishes numerous labor and employment protections for New Jersey temporary workers.  The Bill of Rights is extensive, with multiple new rules related to pay and benefit equity for temporary workers, as well as recordkeeping and notice requirements for employers and “temporary help service firms” that employ temporary laborers in designated classifications.  The New Jersey DOL recently posted proposed rules on its website that address out-of-state work assignments and pay calculations, define terms such as “similar work”, and clarify requirements for mandatory wage statements and maximum placement fees.  Other areas remain ambiguous, so many are hoping for additional guidance in the future.  The public comment period runs through October 20, 2023.

Texas

The State of Texas is attempting to block its cities and counties from adopting or enforcing local labor law ordinances related to employment (as well as many other business-related areas).  If a pending lawsuit challenging the law fails, the “Regulatory Consistency Act” is expected to go into effect on September 1 and would likely eliminate several local laws, including:

• Paid sick leave ordinances in Austin, Dallas, and San Antonio;

• Anti-discrimination ordinances in Austin, Dallas, Fort Worth, and San Antonio;

• Heat illness-prevention ordinances in Austin and Dallas; and

• A scheduling ordinance in Euless.

Even if the pending lawsuit fails and the law goes into effect, we can expect to see multiple challenges in the future asking Texas courts to determine whether a particular local ordinance is “consistent” with state law and therefore a valid exercise of local authority.  Several other states have similar preemption laws that reserve certain topics for state regulation in the interest of statewide consistency and relieving businesses of the burden of navigating multiple overlapping and sometimes conflicting regulations.

  

If you’d like to speak to an HR expert about your business, connect with us.   

  

  

Asure Software provides this information for general information purposes only.  We are not attorneys, and the information in this update should not be relied upon or regarded as legal advice.  This information may not be accurate or complete as it relates to a particular company or situation and does not reflect all developments or laws in all jurisdictions.