Tag: US Citizenship and Immigration Services (USCIS)

New I9 Form Released

Last January we alerted members that the United States Citizenship and Immigration Services (USCIS) announced that employers would be required to utilize the new Form I9 starting in September 2018. The new Form I9 was finally published on July 17, 2017. (Tip: The new version is identifiable as it features an expiration date in the top right corner of August 31, 2019.)

It is recommended that employers begin utilizing the new form as soon as possible to ensure that they are in compliance by the September deadline. 

New I-9 Form Required

New Form I9 Effective January 22, 2017

All employers are required to begin using the new Form I9 starting on January 22, 2017. The new form can be found on the US Citizenship and Immigration Services (USCIS) website. To ensure that you are utilizing the correct form, an expiration date of August 31, 2019 is in the top right hand corner of the form.

Last year we were aware of several ambulance providers who were the subject of Form I9 audits by the USCIS which resulted in technical violations for failing to complete the form correctly. The Form I9 is the document all U.S. employers are required to have completed when hiring a new employee to assure that they are legally eligible to work in the United States. While there has been a reduction in Form I9 Audits from USCIS in 2015, employers should be prepared as the five year trend is on the rise and I am aware of several ambulance providers currently dealing with audits.

The Law

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to examine documentation from each newly hired employee to prove his or her identity and eligibility to work in the United States. The IRCA led to the Form I-9 Employment Eligibility Verification, which requires employees to attest to their work eligibility, and employers to certify that the individual presented documents to the employer that appeared to for the individual and genuine. The form has very specific rules regarding when the certain section of the form must be completed, which documents the employee can proffer as proof of eligibility, and how information must be present in the different sections of the Form I9.

While most employers understand that they must obtain certain information from every newly hired employee, they are often not aware of the specific dates upon which the different sections of this form must be completed. This is where the greatest number of compliance issues arise.

The Form’s Timing

Section 1 of Form I9 is the Employee Information and Attestation section and must be completed by the employee by the close of business on the employee’s first day of employment. This section consists several mandatory fields of the personal information of the new employee and two optional fields. It includes the employee’s full name, date of birth, address, and social security number, email address (optional), telephone number (optional).  In addition, the employee must attest that they are a citizen of United States, a Non-Citizen National, a Lawful Permanent Resident, or an Alien Authorized to Work in the US. The employee must provide an Alien Registration Number or USCIS Number if they check that they are a lawful permanent resident. If they are an Alien Authorized to Work, they must provide the date their authorization expires and their Alien Registration Number. The employee must sign the document and date it. If there is a translator or preparer, they must complete the certification at the end of Section 1.

Section 2 is the Employer or Authorized Representative Review and Verification section and must be completed by the close of business on the third day of employment. This section is where many make a very simple error. First, there is a place at the top of this section where the employer must list the employee’s full name. This frequently gets left blank. Next, the employer must identify the document(s) that the employee is presenting as proof of identity and employment authorization. In Column A, there is a list of acceptable documents, typically a Passport, Permanent Resident Card, or Employment Authorization Document. One or more of these documents can be sufficient. Alternatively, the employee can present one document from each List B and C. These are typically a driver’s license and a birth certificate. These documents don’t have to be copied, but if they are, they must be kept with the Form I9.

It is critical that the employer complete the Certification section of Section 2. This is another area where employers frequently make mistakes. In the Certification, there is a section to mark the date of the employee’s first day of employment. I often find this section blank or find that the employer mistakenly enters the date that they viewed the employee’s documents. The employer needs to complete the Certification section and date it, entering the employer’s business name and address. Failure to complete any of these sections can lead to a Substantive or Technical Violation and fines.

Section 3 of the Form I9 is completed by the employer when re-verifying that an employee is authorized to work or when rehiring an employee within three years of the date on the original Form I9. It is important that employer develop a mechanism for identifying and ensuring any expiring document(s) that requires re-verification. Of course, an employer can always complete a new Form I9 for a returning employee.

Penalties

Title 8 of the Code of Federal Regulations Section 27a.10 established a fine range from $110 to $1,100 per violation.  Fines can be for either a Technical violation, one where an employer fails to ensure that the employee provided all of the personal information, name, DOB, address, etc. or a Substantive violation, where the employer fails to review and verify the required documents or when someone is working without authorization.  These fines can be issued for each individual violation and can be substantial.

Other common errors that carry fines include not documenting the title of the document that the employee presented as proof (example, US Passport, State Driver’s License and Social Security Card).  Not initialing corrections made to the form when corrections are necessary.  Not re-verifying those work authorization documents that require re-verification.

Solution

All of the fines are avoidable by ensuring that you clean up the Form I9 process within your organization. First, services should ensure that only individuals trained and knowledgeable in completing the Form I9 are involved in this process. For training, the USCIS provides great Form I9 training for free on their website. In addition, USCIS has great instructions that accompany the Form I9 and provide for video instruction on their website.  Following these instructions carefully will be the best guarantee that you will complete the form correctly.

In addition, every ambulance service should conduct an audit of their Form I9 processes within their organization. I would have one individual, who is knowledgeable about the rules, conduct a review of all Form I9s for current employees and for any employees who were terminated within the last five years. Under the Regulations, employers can purge any Form I9 documents for employees who are terminated after one year from termination or three years after the date of hire, whichever date is later. However, employers should have Form I9 documents on all employees who are currently on your payroll.

For purposes of record keeping, it is best to keep all Form I9s in one location so that they can be easily provided in the event of an audit. Employers are not required to make copies of the documents an employee provides to the employer as proof of authorization. However, if the employer does copy the documents, they should be kept with the Form I9. I recommend employers make copies of those documents, store them with the Form I9, and be kept in a secure location. If those documents are stored electronically, it is critical that there are sufficient systems in place to ensure the integrity and security of the documents including an electronic audit trail.

Many employers utilize e-Verify, the online system hosted by the USCIS in partnership with Social Security Administration (SSA) that allows employers to search the linked federal databases to ensure that employees are eligible to work in the US and verifies the employee’s Social Security Number. e-Verify is free to employers and is voluntary throughout the country. However, you should check you state law as many states have passed legislation requiring the use of e-Verify. It is easy to enroll and is a necessary part of any I9 compliance plan.

I can tell you that all of the providers that I have questioned about this issue assured me that they have adequate processes in place to ensure compliance. However, after we discussed the timing and information required for the different sections of the Form I9 that were identified in many of the audits I am aware of, it quickly became apparent that most did not really have safeguards in place.

Have an HR Question?  Ask Scott!

HR Wrap-Up: A Look Back at 2016

As we wind up 2016 I thought it would be a good idea to review the year’s human resource and legal developments to ensure that our members are compliant and prepared for what faces them in 2017.  We knew that this was going to be an interesting year as we experienced the most unusual Presidential Election in our history.  It overshadowed everything else that occurred in 2016.  As the Obama administration comes to its final days, employers and ambulance providers saw some of the most sweeping regulatory changes.

Fair Labor Standards Act (FLSA)

The biggest change facing employers in 2016 was the Fair Labor Standards Act (FLSA) overtime changes.  The Department of Labor (DOL) issued updated regulations which were to become effective December 1, 2016, raising the minimum salary thresholds for the so called “white collar” exemptions.  Under the new regulations, the minimum salary would increase from $455 to $970 per week.  For those employees earning under the new amount, employers would need to decide if they are going to raise the salary level or pay the employee overtime for hours worked over 40 in one week.  The changes have not gone into effect yet as a 5th Circuit Judge issued an injunction on the implementation of the new Regulations until the question of their legality is determined.

Most employees in the ambulance industry are hourly paid employees and the Regulatory changes are will not affect their overtime eligibility.  However, ambulance providers should take these changes as an opportunity to evaluate each position within their organization and ensure that any exempt position is appropriately classified.

Civil Penalty Changes

This past August the Department Of Labor published two interim final rules that adjusted the penalties for enforcement actions by several of its agencies.  The penalties increased because Congress passed the Federal Civil Penalties Inflation Adjustment Act in 2015 last November with the intent of improving the effectiveness of civil monetary penalties and hopes of maintaining their deterring effect.  Many agency penalties had not been adjusted since 1990.

The new penalties will only be applicable to penalties assessed after August 1, 2016 for violation that occurred after November 2, 2015.  The DOL posted a chart detailing all of the penalty increases.

Posting Changes

Many of the mandated employer postings also experienced a change this year as a result of the FLSA Regulation updates and because of the Civil Penalty increases.  Employers need to be sure to update the required Federal employment postings in their workplaces.  The new postings are available on the Department of Labor’s website free of charge.  Alternatively, many employers purchase the all-in-one combination Federal and State posters from third party vendors.  Whether obtained from the DOL or from a vendor, the postings need to be updated to reflect these new changes.

Fair Labor Standards Act (FLSA)

The required FLSA posting will reflect the change to the classification of employees, requirements for nursing mothers, and updated enforcement section.  The new posting also removes the prior reference to a specific penalty amount as the penalties will adjust at regular intervals under the penalty adjustment changes.

Occupational Health & Safety Act (OSHA)

In May, the AAA published an advisory notifying members about upcoming changes to the reporting requirements under OSHA, including provisions regarding the notification to employees of non-retaliation for those who file work injury or illness claims.  The non-retaliation notice provisions became effective November 1, 2016.  The new OSHA posting reflects the notice to employees regarding the non-retaliation provisions.

Employee Polygraph Protection Act (APPA)

Like the FLSA posting, the Employee Polygraph Protection Act (EPPA) posting has changed to reflect the removal of a specific penalty amount.  The new EPPA posting can be found on the DOL’s website.

Transgender

One of the more active debates during the end of 2015 and for most of 2016 was an issue not directly related to employers but that had significant impacts on employers was the North Carolina House Bill 2.  HB 2 was sweeping legislation that required restroom and locker room facilities be utilized by individuals based upon the gender listed on their birth certificate.

In May, the Department of Justice filed a Civil Rights suit against the State of North Carolina and its Governor stating that the legislation was “state sanctioned discrimination” and was illegal.  After several legal challenges it appears that the legislation will be repealed by the new North Carolina administration.  Even without the repeal of the legislation employers were on notice that all Federal regulatory agencies included transgender rights as protected under Title VII and subject to the law.

This is notice to employers that they need to allow all employees to utilize the restrooms and changing facilities that are consistent with their gender identity.  The best practice for employers is to provide privacy for all individuals, whether or not they are in a gender specific facility.  This means that restroom and shower facilities should provide as much privacy as possible.  This could include installing privacy strips to restroom stalls, large partitions between urinals, and privacy curtains for showers.  Employers should not assume that individuals born the same gender are comfortable with or do not seek the same privacy in these setting as do individuals of different genders.  The message should be to respect the privacy of all individuals regardless of their gender or gender identity.

Affordable Care Act (ACA) Section 1557 Rules

This past July new Regulations, which implement Section 1557 of the Affordable Care Act (ACA), became effective.  The provisions of Section 1557 build off of existing Title VII and other discrimination laws that extend protections to previously underserved or under-represented groups of people with regard to healthcare.  The new Regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.  In addition, the Regulations provide discrimination protections on the basis of pregnancy, gender identity, and sex stereotyping.  The Final Rule also requires that “covered entities” make available assistance for individuals with Limited English Proficiency (LEP) and those with disabilities, including communications related disabilities.

The new Regulations require that covered entities have a Compliance Coordinator and a Grievance Procedure.  The Compliance Coordinator is to monitor and coordinate compliance with the provisions of the Final Rule.  The Grievance Procedure has to provide the appropriate due process standards that would allow for the prompt and equitable resolution of complaints concerning actions prohibited by Section 1557.  HHS has included a sample Grievance Procedure in Appendix C to Part 92—Sample Section 1557 of the Affordable Care Act Grievance Procedure  to assist covered entities in meeting this requirement.

In addition, the Regulations require that all covered entities post notices assuring patients that the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability and that auxiliary aides and services for individuals with Limited English Proficiency (LEP) and Communication related disabilities.  To alert these individuals, ambulance providers must post a notice regarding the availability of these aids and services in the top 15 languages spoken in the state of operation.

A Look Ahead to 2017

OSHA

Starting in 2017, employers will be required to electronically report work related injuries to OSHA.  The AAA posted information about this new requirement last week.  Employers should anticipate increased OSHA investigatory activity following this first year of injury reporting.  Currently, OSHA obtains the majority of their injury data from employee complaints or on site visits.  These new reporting requirements are intended to persuade employers to be more proactive with regard to workplace safety.  As we learn more about the tools OSHA will utilize to collect this information, we will notify members.

EEO-1 Pay Reporting

The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract and Compliance Programs (OFCCP) have approved a new EEO-1 Form that will be used starting with the 2017 report, which will be due on March 31, 2018.  The new report requires private employers, including federal contractors and subcontractors, with 100 or more employees to submit summary pay data on the EEO-1 Form.  Federal contractors and subcontractors with 50-99 employees will not submit summary pay data but will continue to report demographic data (sex and race or ethnicity) on the EEO-1 as they did before.  Also, Federal contractors and subcontractors with 49 or fewer employees, and companies without federal contracts with 99 or fewer employees, will not be required to complete the EEO-1 report.  The goal is to remove the pay inequities amongst different protected classes.

Employers will have some time to make the necessary changes to their systems to ensure that their systems can collect and report this data.

Minimum Wage Increases

There are 21 states that are going to have a minimum wage increase in 2017.  While most of our industry pay rates are above the minimum wage amounts.  Services should check their state minimum wage to ensure that their mandated minimum wage pay and postings are up to date.

New Form I9

Just a reminder that employers will be required to use the new Form I9 for all employees hired on or after January 22, 2017.  The USCIS announced last month that it has updated the Form I9 and for employers to begin utilizing these forms no later than January 22, 2017.  For more information on the new Form I9, view the IRS Press Release announcement posted last month.

New W2 Reporting Requirements

Employers need to be aware that the Internal Revenue Service (IRS) has moved up the date that employers have to file their Form W2 with the IRS.  Previously, employers had until the end of February to file their Form W2s with the IRS.  Under the new deadline, employers must file all Form W2 by January 31, 2017.  The January 31st deadline has long applied to furnishing of the Form W2s to their employees.  For more details on the new filing deadline, read the IRS Announcement.

Signing Off for 2016

This has proven to be an incredibly busy year for all employers, including ambulance providers.  AAA Members should remember that there are numerous resources available through the AAA in the Member Area on the website, through AAA Staff and Consultants, and also with the hundreds of members who are all working together to care for the patients and communities we serve.  Do not face the challenges in your organization alone.  Your membership brings with it a great deal of tools and resources so that you can focus on providing your patient with outstanding service.  Happy New Year.

 

Older USCIS E-Verify Records to Be Deleted

The U.S. Citizenship and Immigration Services (USCIS) will be deleting records from the E-Verify system that are ten years old or older.  For employers who have been using the E-Verify system since 2006, you may wish to download and archive any records before the end of this year.  These records could be useful for an employer in the event an employer is audited.  The USCIS will delete those records in March, 2017.  For more details on why it is important to archive this data, see the Society for Human Resources Management article.

New I9 Form Must Be Used By January 22

On November 14, the United States Citizenship and Immigration Services (USCIS) published a revised I9 Employment Eligibility Verification form. Ambulance services (and all other employers) must implement the new version of the form by January 22, 2017.

The updated form is easier to complete on a computer, and includes clarified instructions and extra space for additional information.

Get full details on the USCIS site.

Audit Alert! USCIS Form I9

One of the most commonly misunderstood compliance issues for any employer is the US Citizenship and Immigration Services (USCIS) Form I9. Form I9 is the document all US employers are required to have completed when hiring a new employee to assure that they are legally eligible to work in the United States. While there has been a reduction in Form I9 Audits from USCIS in 2015, employers should be prepared as the five year trend is on the rise. In fact, I am aware of several ambulance providers currently dealing with audits.

The Law

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to examine documentation from each newly hired employee to prove his or her identity and eligibility to work in the United States. The IRCA led to the Form I-9 Employment Eligibility Verification, which requires employees to attest to their work eligibility, and employers to certify that the individual presented documents to the employer that appeared to for the individual and genuine. The form has very specific rules regarding when the certain section of the form must be completed, which documents the employee can proffer as proof of eligibility, and how information must be present in the different sections of the Form I9.

I believe that most employers understand that they must obtain certain information from every newly hired employee. However, with the Form I9, there are very specific dates upon which the different sections of this form must be completed. This is where the greatest number of compliance issues arise when dealing with I9 Audits.

The Form’s Timing

Section 1 of Form I9 is the Employee Information and Attestation section and must be completed by the employee by the close of business on the employee’s first day of employment. This section consists several mandatory fields of the personal information of the new employee and two optional fields. It includes the employee’s full name, date of birth, address, and social security number, email address (optional), telephone number (optional). In addition, the employee must attest that they are a citizen of United States, a Non-Citizen National, a Lawful Permanent Resident, or an Alien Authorized to Work in the US. The employee must provide an Alien Registration Number or USCIS Number if they check that they are a lawful permanent resident. If they are an Alien Authorized to Work, they must provide the date their authorization expires and their Alien Registration Number. The employee must sign the document and date it. If there is a translator or preparer, they must complete the certification at the end of Section 1.

Section 2 is the Employer or Authorized Representative Review and Verification section and must be completed by the close of business on the third day of employment. This section is where many make a very simple error. First, there is a place at the top of this section where the employer must list the employee’s full name. This frequently gets left blank. Next, the employer must identify the document(s) that the employee is presenting as proof of identity and employment authorization. In Column A, there is a list of acceptable documents, typically a Passport, Permanent Resident Card, or Employment Authorization Document. One or more of these documents can be sufficient. Alternatively, the employee can present one document from each List B and C. These are typically a driver’s license and a birth certificate. These documents don’t have to be copied, but if they are, they must be kept with the Form I9.

It is critical that the employer complete the Certification section of Section 2. This is another area where employers frequently make mistakes. In the Certification, there is a section to mark the date of the employee’s first day of employment. I often find this section blank or find that the employer mistakenly enters the date that they viewed the employee’s documents. The employer needs to complete the Certification section and date it, entering the employer’s business name and address. Failure to complete any of these sections can lead to a Substantive or Technical Violation and fines.

Section 3 of the Form I9 is completed by the employer when re-verifying that an employee is authorized to work or when rehiring an employee within three years of the date on the original Form I9. It is important that employer develop a mechanism for identifying and ensuring any expiring document(s) that requires re-verification. Of course, an employer can always complete a new Form I9 for a returning employee.

Penalties

Title 8 of the Code of Federal Regulations Section 27a.10 established a fine range from $110 to $1,100 per violation. Fines can be for either a Technical violation, one where an employer fails to ensure that the employee provided all of the personal information, name, DOB, address, etc. or a Substantive violation, where the employer fails to review and verify the required documents or when someone is working without authorization. These fines can be issued for each individual violation and can be substantial.

Other common errors that carry fines include not documenting the title of the document that the employee presented as proof (example, US Passport, State Driver’s License and Social Security Card). Not initialing corrections made to the form when corrections are necessary. Not re-verifying those work authorization documents that require re-verification.

Solution

All of the fines are avoidable by ensuring that you clean up the Form I9 process within your organization. First, services should ensure that only individuals trained and knowledgeable in completing the Form I9 are involved in this process.  The USCIS provides great Form I9 training for free on their website. In addition, USCIS has great instructions that accompany the Form I9 and provide for video instruction on their website. Following these instructions carefully will be the best guarantee that you will complete the form correctly.

In addition, every ambulance service should conduct an audit of their Form I9 processes within their organization. I would have one individual, who is knowledgeable about the rules, conduct a review of all Form I9s for current employees and for any employees who were terminated within the last five years. Employers can purge any Form I9 documents for employees who are terminated after one year from termination or three years after the date of hire, whichever date is later. However, employers should have Form I9 documents on all employees who are currently on your payroll.

For purposes of record keeping, it is best to keep all Form I9s in one location so that they can be easily provided in the event of an audit. Employers are not required to make copies of the documents an employee provides to the employer as proof of authorization. However, if the employer does copy the documents, they should be kept with the Form I9. I recommend employers make copies of those documents, store them with the Form I9, and be kept in a secure location. If those documents are stored electronically, it is critical that there are sufficient systems in place to ensure the integrity and security of the documents including an electronic audit trail.

Many employers utilize e-Verify, the online system hosted by the USCIS in partnership with Social Security Administration (SSA) that allows employers to search the linked federal databases to ensure that employees are eligible to work in the US and verifies the employee’s Social Security Number. e-Verify is free to employers and is voluntary throughout the country. However, you should check you state law as many states have passed legislation requiring the use of e-Verify. It is easy to enroll and is a necessary part of any I9 compliance plan.

I can tell you that all of the providers that I have questioned about this issue assured me that they have adequate processes in place to ensure compliance. However, after we discussed the timing and information required for the different sections of the Form I9 that were identified in many of the audits I am aware of, it quickly became apparent that most did not really have safeguards in place.