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
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