In July 2009, U.S. Immigration and Customs Enforcement announced that it sent notices to 652 businesses nationwide informing them that they have been targeted for Form I-9 audits. The audits will entail inspection of hiring records to determine whether the employers are in compliance.
While on its face the Form I-9 appears simple, it is full of quirks and intricacies that are often a source of confusion for employers. That is why it is imperative that employers take great care to ensure that the form is completed accurately, filed on time, and retained for the requisite time period.
The Form I-9 is a one-page form that employees complete to verify their identity and prove that they are permitted to work in the U.S. It has three sections.
Section 1 asks the employee to complete basic biographical information and certify that he or she is a U.S. citizen, permanent resident, or authorized to work under another status.
Section 2 is completed by the employer, which must verify, and attest under penalty of perjury, which documents an employee presented to prove the employee's identity and right to work and that the paperwork was completed in a timely manner. Employees may present items from List A in the instructions that prove both identity and authorization to work, or they may provide a combination of an identification document from List B and a document that confirms employment eligibility from List C.
Section 3 is used to reverify expiring employment authorization. It is reserved for employers who must occasionally update the Form I-9 if the employee is not authorized to permanently work in the U.S.
When presented with the supporting documents asked for by the Form I-9, an employer must accept them, as long as they appear to be reasonably genuine and to relate to the individual presenting them. It is important to note that an employer must not accept documents that do not reasonably appear to be genuine or to relate to the person presenting them. Due to a recent change in Form I-9 policy, expired documents and photocopies of supporting documents are no longer acceptable.
Many times, the Form I-9 process begins on the employee's first day of work, when the employee is asked to complete the first section of the Form I-9. The employee then has three days to provide the requisite supporting documents.
For Form I-9 purposes, an individual is not considered a rehire if the employee was on a leave of absence (paid or unpaid), the employee was temporarily laid off, or the employment is considered seasonal. In order to qualify as a rehire, however, a seasonal employee must have had a reasonable expectation of continued employment.
All employers are required to retain Forms I-9 for three years after the date employment begins or one year after the date of termination, whichever is later. Employers must be able to make Forms I-9 available for inspection if called upon by an officer of DHS or the U.S. Department of Labor. Failure to do so could result in the imposition of civil fines.
Wednesday, February 17, 2010
Senate Considers Payroll Tax 'Holiday' in Jobs Bill
Two key Senators proposed bipartisan draft legislation designed to address the nation's high unemployment rate by providing hiring incentives to employers. The proposal was introduced Thursday by Sens. Max Baucus (D-MT), chairman of the Senate Finance Committee, and Charles Grassley (R-IA), the committee's top-ranking Republican. But Senate Majority Leader Harry Reid (D-NV) almost immediately threw cold water on portions of the bill designed to attract Republican support.
A key provision of the bill is a payroll tax exemption for employers that hire previously unemployed workers. The brainchild of Sens. Charles Schumer (D-NY) and Orrin Hatch (R-UT), the provision would exempt qualified employers from paying Social Security payroll taxes for certain qualified individuals. The maximum value of the exemption would be equal to 6.2% of wages up to a cap of $106,800.
A "qualified individual" is defined in the proposal as a person who begins employment with a qualified employer after Feb. 3 and before Jan. 1, 2011, and who signs an affidavit certifying that he or she had not been employed for more than 40 hours in the 60-day period immediately prior to beginning employment, is not being employed to replace another employee of the employer except one who has quit or been fired for cause, and is not "related" to the employer under rules set forth in the U.S. tax code.
The exemption applies to wages paid during the period beginning the day after the legislation is enacted and ending Dec. 31 for "services performed in a trade or business" of a "qualified employer," which is defined as any private (nongovernment) employer.
The payroll tax credit would be coordinated with the Work Opportunity Tax Credit so that an employer could not claim both credits.
In addition to the payroll tax credit, employers would be entitled to an additional $1,000 income tax credit for every new employee hired in 2010 who is employed for 52 consecutive weeks. Such credit would be taken on the employer's 2011 income tax return.
The draft does not include a proposal made by President Obama that would provide employers with a $5,000 tax credit for each net new job created in 2010.
The Baucus–Grassley proposal includes additional provisions designed to appeal to Republicans, such as extensions of expiring tax provisions and pension funding relief. Reid objected to these provisions, saying they went beyond the goal of job creation.
Reid is promoting his own streamlined jobs bill that will include key elements of the Baucus–Grassley provisions, including extension of a tax code provision allowing small businesses to expense certain capital expenditures, and the payroll tax and employee retention tax credits proposed by Schumer and Hatch. But it is unclear whether a scaled-back bill would have enough Republican support to pass.
Reid said the Senate likely will take up the bill this week after the senators come back from their Presidents Day recess.
Ed Lenz
A key provision of the bill is a payroll tax exemption for employers that hire previously unemployed workers. The brainchild of Sens. Charles Schumer (D-NY) and Orrin Hatch (R-UT), the provision would exempt qualified employers from paying Social Security payroll taxes for certain qualified individuals. The maximum value of the exemption would be equal to 6.2% of wages up to a cap of $106,800.
A "qualified individual" is defined in the proposal as a person who begins employment with a qualified employer after Feb. 3 and before Jan. 1, 2011, and who signs an affidavit certifying that he or she had not been employed for more than 40 hours in the 60-day period immediately prior to beginning employment, is not being employed to replace another employee of the employer except one who has quit or been fired for cause, and is not "related" to the employer under rules set forth in the U.S. tax code.
The exemption applies to wages paid during the period beginning the day after the legislation is enacted and ending Dec. 31 for "services performed in a trade or business" of a "qualified employer," which is defined as any private (nongovernment) employer.
The payroll tax credit would be coordinated with the Work Opportunity Tax Credit so that an employer could not claim both credits.
In addition to the payroll tax credit, employers would be entitled to an additional $1,000 income tax credit for every new employee hired in 2010 who is employed for 52 consecutive weeks. Such credit would be taken on the employer's 2011 income tax return.
The draft does not include a proposal made by President Obama that would provide employers with a $5,000 tax credit for each net new job created in 2010.
The Baucus–Grassley proposal includes additional provisions designed to appeal to Republicans, such as extensions of expiring tax provisions and pension funding relief. Reid objected to these provisions, saying they went beyond the goal of job creation.
Reid is promoting his own streamlined jobs bill that will include key elements of the Baucus–Grassley provisions, including extension of a tax code provision allowing small businesses to expense certain capital expenditures, and the payroll tax and employee retention tax credits proposed by Schumer and Hatch. But it is unclear whether a scaled-back bill would have enough Republican support to pass.
Reid said the Senate likely will take up the bill this week after the senators come back from their Presidents Day recess.
Ed Lenz
Workplace Discrimination Charges Near Record Number
The United States Equal Employment Opportunity Commission (EEOC) announced in January that, during the fiscal year ending September 30, 2009 it received more than 93,000 workplace discrimination charges nationwide and obtained relief for victims totaling more than $376 million.
It is the second highest number of charges the EEOC has received. (The enforcement and litigation statistics can be found on the EEOC’s website.)
According to an EEOC release, the “data show that private sector job bias charges (which include those filed against state and local governments) alleging discrimination based on disability, religion and/or national origin hit record highs.” In addition, the number of charges claimed age-based discrimination reached the second-highest level ever. The EEOC also reported that, continuing “a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Multiple types of discrimination may be alleged in a single charge filing.”
The EEOC suggested that the level of charges filed “may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.”
by Jon Vegosen Working World Cafe
Tuesday, February 16, 2010
Eleventh Circuit holds that pervasive use of gender-specific vulgarities can create a hostile workplace for women, even if they are not directed at a specific female employee.
After working as a sales representative for three years at C.H. Robinson Worldwide, Ingrid Reeves sued the company for allegedly subjecting her to a hostile work environment in violation of Title VII. Reeves alleged she was subjected daily to gender-specific vulgarities from her male co-workers. She stated they also talked within ear-shot about masturbation and bestiality and often listened to a Howard Stern-like radio show loaded with sexual references. The trial court dismissed Reeves’s claims. The trial court found that the language and sexual comments were not directed at her specifically. Because the offensive behavior was not motivated by her gender, the trial court held that Reeves had no Title VII claims.
On appeal, the Eleventh Circuit Court of Appeals initially reversed the trial court’s ruling, holding that Reeves had presented a jury question about whether the offensive conduct was based on her sex. In 2009, the court vacated that ruling and agreed to rehear the case en banc. In a unanimous ruling, the court held that a jury could reasonably find that the offensive conduct was “humiliating and degrading” to women specifically, stating as follows:
"Instead, a jury reasonably could find that it was a workplace that exposed Reeves to disadvantageous terms or conditions of employment to which members of the other sex were not exposed. Title VII was plainly designed to protect members of a protected group from adverse conditions of employment like those Reeves alleges were endemic to C.H. Robinson.
The court further noted that referring to a female as a “bitch” is “firmly rooted in gender” and that such language “is humiliating and degrading based on sex” regardless of the intended target.
by Jodie L. Hill .... jodielhill.com
Friday, February 12, 2010
MEAL AND BREAK PERIODS
Meal and lunch periods are staples of every employee's work day. Providing and employee a reasonable amount of time tobreak for a meal during their shift seems like a simpole matter of employer courtesy, but many employers may not realize that specific rules apply to meal and lunch periods.
Currently, no federal law specifically addresses meal and break periods. The Fair Labor Standards Act (FLSA) includes only general provisions about what constitutes a bona fide meal period as opposed to a rest period. Though Federal Law does not impose specific restrictions, many states have passes laws about meal period entitlements.
The FLSA stresses that bona fide meal periods include relief from duty for the purposes of eating regular meals. As such, employees who eat at their workstations while on duty are engaged in rest periods, not bona fide meal periods. According to the FLSA, rest periods are compensable. Allowing employees to work through their lunch may constitute a violation of the FLSA and/or applicable state wage and hour laws (it does in Pennsylvania). To ensure that lunch breaks are considered unpaid "bona-fide meal periods" under the FLSA, employers must require employees to leave their workstations and clock out for lunch.
Pennsylvania employers are required to provide break periods of at least 30 minutes for minors ages 14 through 17 who work five or more consecutive hours. Employers are not required to give breaks for employees 18 and over. If the employer allows breaks, and they last less than 20 minutes, the employee must be paid for the break. If the employer allows meal periods, the employer is not required to pay the employee for the meal period PROVIDED they do not work during their meal period and it lasts more than 20 minutes. A collective bargaining agreement may also govern this issue.
Tuesday, February 9, 2010
Expanding the Definition of an 'Accident Witness'
When investigating a workplace injury on a job site, one standard practice is to locate and interview witnesses. So, who do you look for? In most cases we look for anyone who saw the injury. After all, that is the definition of a witness, right?
If the claimant is a predator, there will likely be no witnesses to the alleged injury. No one saw the claimant get hurt so the conclusion that “there were no witnesses” is made. In reality, there are some witnesses that may have valuable information to contribute to the investigation. These will be supervisors or coworkers who were exposed to the claimant before and after the alleged injury.
Suppose a claimant reports to work complaining of leg pain to his coworkers even before the shift begins and then later that day claims that the same leg was injured during the course of working. Unfortunately, this happens quite often. The claimant may come to work on the day of the alleged injury already limping or cradling an injured arm and then allege a workplace injury to cover the medical costs arising from an injury that actually occurred at home. These limps, moans, and groans prior to the injury may be valuable information to risk managers and claims adjusters as they process the workers compensation claim and may mean serious savings to your company.
Consider interviewing people who worked with the claimant after the injury. For example, if the claimant states that the injury occurred midway through the shift, but no one actually saw it happen and the claimant finished the shift; find out if the claimant's behavior during the remainder of the shift was indicative of the injury or if it was “normal” in the eyes of supervisors and coworkers.
Often, fraudulent claims are filed for injuries that actually happened over a weekend or holiday. If the claimant reports the injury on Monday morning or after a holiday, this would be a good time to check with people who worked with the claimant during the shift on which the injury allegedly occurred to gather information about behavior that might indicate a fraudulent claim.
Remember that a witness is not only a person who is aware of the injury, but someone who knows about the claimant. Always include supervisors and coworkers in your investigation. This will improve the quality of the investigation and may provide valuable information to assist in the fair and accurate processing of the claim.
Monday, February 8, 2010
HCS--Hazard Communication Standard
What?
Fed-OSHA's Hazard Communication Standard (29 CFR 1910.1200) imposes specific training, labeling, and documentation requirements on businesses that work with hazardous chemicals. This regulation is the most frequently-cited OSHA standard for general industry employers, meaning that more businesses are fined for non-compliance with the rule than any other safety regulation.
Who?
The standard applies to businesses with 1 or more employees under Fed-OSHA jurisdiction if any hazardous chemical is used or stored in the workplace. It is enforced by Fed-OSHA. The "hazard determination" provisions of the standard apply only to producers of hazardous chemicals. The remainder of the standard applies to users of hazardous chemicals.
How?
The core element of the rule is a document called a "Material Safety Data Sheet" (MSDS), which producers of hazardous chemicals must include with each shipment. MSDS's list the chemical's ingredients, characteristics, health hazards, fire/explosion hazards, control measures, and safe handling practices. Employers must store these MSDS's for each chemical in their facility, and must grant employee access to these sheets upon request.
Requirements
Employers covered by the standard must implement a written hazard communication program addressing such topics as storage and retention of MSDS's, container labeling, safe handling, and employee training. The training requirement requires employers to train their employees on how to read chemical labels and how to use the chemicals safely (including the types of personal protective equipment that must be worn, if any).
Penalties
Penalties for non-compliance depend upon the severity of violation and the safety and health record of the business. Non-serious violations are punishable by fines up to $7000.00 per violation. Willful and repeat violations are punishable by fines up to $70,000.00 per violation.
Recommnedations
Since the definition of "hazardous chemical" as listed in the standard is quite broad, the Hazard Communication standard can be interpreted as applicable to virtually every workplace. As such, implementing a written program in every facility is highly recommended, regardless of whether the employer is aware of whether on-site chemicals are truly "hazardous."
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