CRITICAL INFORMATION ABOUT
THE REVISED I-9 FORM
THE NEW NC "EMPLOYEE CLASSIFICATION ACT." WHAT DO THESE MEAN TO YOUR BUSINESS?
Articles Written By: H. Graham Dail, M.Ed., CHCM, Senior Consultant,
JER HR Group
URGENT: REVISED FORM I-9 DATED 07/17/2017 MUST BE USED EFFECTIVE NOW
Employers must begin using Form I-9 with a revision date of 07/17/2017 N immediately! This version of the Form I-9 is valid until August 31, 2019. The effective date of the new Form I-9 was September 18, 2017. Effective this date, employers cannot use any form that does not have the new date. The date is found in the bottom left-hand corner of the form. Prior versions of the form are no longer valid and cannot be used. Use of another form after September 18, 2017 will subject employers to penalties. See following I-9 with approval date and expiration date highlighted.
Effective with this form, employers can either use the "on-line" version using a fillable PDF or by hand using a paper version. If an employer uses the "on-line" version of the I-9 form, it must be printed and signed by all parties involved. Electronic signatures are generally not acceptable (you may want to review this section of the Handbook for Employers: Guidance for Completing Form I-9, M-274). Employers must follow the rules for completing the I-9, all of which are included in the Employer Handbook.
It is very important that employers print a copy of the Handbook for Employers, become familiar with all I-9 requirements and complete I-9s in accordance with the requirements in the Handbook. Sloppy and carelessly completed I-9s can subject employers to severe penalties and even jail time. Following the printed rules when completing I-9s is essential to protect the employer and minimize risks should the employer have an I-9 audit. In this day of increased attention being given to immigration, the number of USCIS conducted I-9 audits is substantially increasing and corresponding penalties are reflecting the degree of attention being given to them. A newspaper article recently indicated a $95 million-dollar penalty being imposed on Asplundh Tree Expert Co. of Willow Grove, PA.
Remember that your company is responsible for properly completing Form I-9 and examining and recording information the employee presents to verify identity and authorization to work. Review the Employer Handbook and follow the rules, which are the cornerstones of managing the I-9 risk.
WHAT DOES THE NEW NC "EMPLOYEE CLASSIFICATION ACT" MEAN TO YOUR BUSINESS?
Most North Carolina employers are familiar with the issue of misclassification of employees as independent contractors to avoid withholding and paying taxes, providing workers' compensation coverage and limiting other benefits. The Employee Fair Classification Act legislation signed into law on August 11, 2017, changes the potential consequences of misclassification and substantially raises the risks to employers for misclassifying workers as independent contractors.
This legislation does not change the definition of an "employer" or "employee" currently applicable under North Carolina law. Rather than providing new definitions, this Act is focused on increased information sharing with state and federal regulatory agencies.
The Employee Fair Classification Act establishes a new system to report, investigate and disseminate information about misclassification of workers. This legislation acts as a clearing house for reported misclassification. It also creates a new division of the North Carolina Industrial Commission, entitled the "Employee Classification Section, whose mission is to receive and investigate misclassification claims.
When the section receives a report of misclassification, the Act requires the section to forward the report to state agencies that may have an interest in it, including the Wage and Hour Division of the U.S. Department of Labor, several N.C. agencies, including the Employment Security Commission, Revenue Department, and the Industrial Commission.
The Employee Fair Classification Act does not focus on enforcement but it substantially increases the scope of potential fallout from a single instance of misclassification. The purpose of the Act is information sharing. Effective January 1, 2018, a single report of misclassification is likely to result in investigations by multiple state and even federal agencies which could dramatically increase the financial exposure if misclassification is substantiated. Employers requiring state licenses will be required to report misclassification investigations on application documents. Obviously, a single report of misclassification could potentially affect an employers' ability to conduct business in this state.
The Act also requires that N.C. employers post a permanent bulletin board notice informing employees of their reporting rights. It is recommended that N.C. employers evaluate any questionable classifications before the Act becomes effective on December 31, 2017.
IN THE NEWS!
You may be aware of the rising number of claims of sexual harassment. This brings to light the importance of sexual harassment training in the workplace. Is your organization prepared to address these situations?
Click HERE to see what Managing Consultant, David Moff had to say to WFMY News 2 about what to do if you find yourself in a situation of sexual harassment in the workplace.
JER HR Group can help! Call us to speak to a training expert about this or other types of harassment training.
Our New York headquarters office has moved
Jer HR Group strives to bring our clients the most VITAL HR news and information for your business. IN KEEPING WITH THIS EFFORT, in 2017 we will follow a Quarterly Newsletter format vs. OUR PREVIOUS MONTHLY COMMUNICATIONS to better serve you! oF COURSE,
IF critical hr DEVELOPMENTS ARISE, YOU WILL HEAR FROM US!
New "Smart" I-9 Form Required Beginning
January 22, 2017
H. Graham Dail, M.Ed., CHCM
Senior Consultant, JER HR Group
The current version of the I-9 form expired on March 31, 2016. Employers were allowed by USCIS to continue using the expired form until the new "smart" form was finalized and approved by the Office of Management and Budget (OMB) on August 25, 2016. USCIS was given a 150-day grace period before releasing the "smart" form for use by employers. The grace period expires on January 21, 2017, so employers must begin using the new, "smart" form
on January 22, 2017.
The new I-9 form includes some "smart" error-checking features which are available only when using an Adobe PDF viewer or application and some structural changes and instructions employers must know and learn. The "smart" form must be completed on-line for the new features to work.
"Smart features" will guide users through the process and incorporates several features intended to make it easier and simpler for employers to complete. It also contains several features, such as drop-down menus, hover text, and real-time error notices designed to help users reduce errors. It will also mark fields that don't apply to an employees' status as "not applicable." Finally, the form includes new drop-down menus for the List A, B & C documents which allow point and click selection and limits document selection to those corresponding to the employees' selected status or citizenship.
Content changes to the "smart" form include four changes in Section 1. First, the "other names field" has been replaced with "other last names used." Second, a change in Section 1 allows an employee to indicate whether the number provided is an A-number or a USCIS number. Third, the form allows certain foreign nationals to either enter a foreign passport information or Form I-94, but not both. Section 2 includes two changes. One is the addition of a new field labeled "Citizenship/immigration Status" and the other is a new field that allows employers to input new information that is currently noted in the margin.
USCIS points out that the new form is not an "Electronic I-9." USCIS makes it clear that even though the form is designed to be completed electronically, the new smart I-9 form is not an electronic I-9 as defined by the Department of Homeland Security. Employers must still print the form, require the employee and the preparer to manually date and sign it, store it in a safe place, monitor re-verifications and updates with a calendaring system and retype the information into E-Verify where its use is required.
The "smart" form has an expiration date of August 31, 2019. The smart form is available by late summer on the USCIS website. It is recommended that:
Remember, though, it is not an electronic form. Even though the form can be completed on line, it must still be printed, signed and filed in accordance with current guidelines and best practices.
Need more information about this or other HR issues?
|Call us at (336) 292-1911|
We've all seen numerous examples dotted across Facebook, LinkedIn and probably every other current example of modern social media; catchy phrases, often accompanied by beautiful photos, describing what the term "leadership" means and what it does not. And how you can improve at this desirable skill set.
These pithy, inspirational snippets are quite popular, as evidenced by their frequent appearances and the number of "likes" that each captures. But do they really have an impact? Does reading them actually serve as a catalyst to alter someone's behavior? I suspect that there aren't too many "aha!" moments out there where someone reads a motivational phrase and abruptly decides to turn their professional life around.
In many instances (perhaps most) these poster-worthy signposts likely bounce off our consciousness. We like them, probably agree with most of what they say, but then they don't really galvanize us into action. They don't change us.
What is a Leader?
Most leadership definitions relating to the workplace focus on people skills, those attributes necessary to engage a group of employees. But that's not what we're talking about here. Think "leading the business" rather than managing people.
The dictionary doesn't help much, as "leadership" is defined as "The position or function of a leader," or "An act or instance of leading." Pretty vague.
But a "leader" is also described as "A guiding or directing head" - which is the best official guidance we're going to get.
So what does the word "Leader" mean to you? And to that person looking back at you from your mirror?
Functional leadership, being responsible for the direction of an organizational grouping, requires an additional level of skill beyond working well with people. It's about being inspired, taking risks, setting direction and using influencing skills to make a difference. It's sticking your neck out there to be seen, to be heard, to be a factor within your organization.
And while you're admiring your reflection in the mirror, consider this; can you be an effective people leader yet remain ineffective as a functional leader? Think about it. If we define a functional leader as one responsible to move the organization (staff, department, business, etc.) forward from Point A to Point B, can you remain at Point A (essentially treading water, administering the routine, leaving programs on automatic pilot, etc.) and still lead people? I suspect so, though that may not be what your senior management is interested in.
In my view, remaining at Point A is not providing Compensation Leadership, whatever else you might be doing right.
Back to the mirror. Ask yourself, what role have you been asked to play in your leadership position?
Would you consider any or all of these responsibilities as desired outcomes that would move the organization's operating dial from Point A to Point B? Or perhaps leadership in your environment focuses primarily on you only as the titular leader of a group of employees, where you're expected to:
This set of responsibilities sound more like the classic definition of treading water. "Let's stay at Point A and join the bowling team."
Demonstrating Compensation Leadership
It is my view that the demands of compensation leadership are less about being a well-liked fellow and getting a lot of Christmas cards, but more about moving the organization forward in your chosen field. Of being a player who gets this done. How do you do that?
Can you do both? Can you provide leadership for your compensation function and for the employees on your staff? Yes, you can. But realize that the value of differing types of leadership skills is often weighted differently by various senior management assessments. What do they want you to achieve where you work?
Btw, I don't recall seeing many catchy phrases or cute pictures that encourage functional leadership. Or maybe I'm missing them.
THE ADA AND ITS AMENDMENTS: Part 2
NAVIGATING REASONABLE ACCOMMODATION
By: Graham Dail, M. Ed., CHCM
Last month we discussed the importance of understanding the Americans with Disabilities Act and its' Amendments (the ADAAA) and the need to consider the possibility of providing job protected leave as an ADA accommodation if a disabled employee is not eligible for or exhausts his or her FMLA leave. We also considered why it is necessary for employers to properly administer the ADAAA and assign responsibility of administration to human resources. Finally, we considered three major mistakes employers make when they don't consider providing job protected, unpaid leaves of absence as accommodations.
Last months' discussion raises a number of questions about compliance with the Americans with Disabilities Act and its' Amendments. The purpose of the Americans with Disabilities Act is to maximize employment opportunities for individuals with disabilities. Implementation of an effective compliance plan for the ADAAA takes time and effort. Taking a proactive approach on the front end is much more effective than reacting later to specific issues or problems. While there is substantial material recommending various policies and procedures available to help employers develop a policy and procedures for compliance, employers must remember that compliance with the ADAAA should be a case-by-case basis. Every employer should have a written policy and internal procedures which are described in the 7 steps below.
It also makes sense to centralize funding for accommodations. Managers or supervisors are likely to resist paying for accommodations, claiming that it is "too expensive" or is not "budgeted." Managers and supervisors have very different perspectives when accommodations become issues and should not be the decision maker when determining "expense" and "undue hardship."
The employer is expected to "make employment decisions based on the abilities of individual applicants or employees and not presumptions or generalizations about what the individuals with disabilities can or cannot do."
Documentation should not only include detailed records about accommodations that were made, but also include information about attempts that were considered but not made and resources that were identified. Finally, employers need to document accommodations that were not made because of undue hardship. By properly documenting what an employer is doing, employers will show their good faith efforts to comply with ADAAA requirements.
Administering the ADAAA will take time and effort. Take time on the front-end to outline the plan rather than reacting later to specific issues. Each employer must decide how to handle their program.
If you have questions about the administration of your ADA or FMLA programs, please give us a call at (336) 292-1911.
Graham Dail is a Senior Consultant and compliance specialist at JER HR Group.
Employers are reasonably familiar with requirements of the FMLA (Family Medical Leave Act) but many have trouble with the notion that ADA (Americans with Disabilities Act) and FMLA interact with each other and are not mutually exclusive. The EEOC has long recognized that unpaid leaves of absence, which are provided by FMLA, are also regarded as reasonable accommodations under the ADA. Failure to consider and/or provide unpaid leaves of absence can be a major issue and is likely to lead to a discrimination charge.
One slip involving the ADA and its Amendment can lead to multiple investigations of your company's administrative practices, lawsuits, fines and back pay liability and a close examination of your company's ADA procedures. How can a company protect itself from this risk and what should human resources be doing to manage and protect the organization from the negative consequences associated with such investigations?
A review of recent EEOC charges have identified the three major reasons for discrimination charges. These are some common "mistakes" in administration of the ADA and its amendments.
1. Inflexible leave policies
The EEOC does not like inflexible leave policies, defined as those that mandate employee termination once they exhaust an established amount of leave (including FMLA). The EEOC's position is that policies with firm dates and that do not provide employer flexibility for accommodating employees based on the circumstances of the individual case are illegal. The EEOC says that employers cannot establish such rigid, inflexible policies because they do not allow an employer to explore the possibility of offering additional leave as a reasonable accommodation under the ADA. Neither the courts nor the EEOC require an "open-ended" leave period and have drawn the line at about 6 months. The EEOC's position is that the determination to offer leave as an accommodation is based on the interactive process that must occur between the employer and the employee.
2. Failure to Understand the interactive process
Mistake # 2 is failure to correctly complete the ADA required interactive process, perhaps because the EEOC offers very little guidance or support to employers as they struggle with developing this protocol for administering the ADA. The EEOC defines the interactive process in a very simple way - the means by which the employer must learn about the employee's disability and ask if there is something the employer can do - within reason - to help the employee perform the essential functions of the job. The biggest problem we see in the workplace is that employers tend to leave it up to supervisors and managers to determine if an accommodation can be provided and/or require employees to request an accommodation rather than suggesting the interactive process to work with the employee to identify an accommodation.
Please note that EEOC guidelines assign responsibility for the interactive process to human resources and they fully expect human resources to be responsible and accountable for overseeing the procedure.
There are a few things you need to know about the interactive process:
Documentation of the interactive discussions, suggestions by the employee alleging a disability and records of the conversations are crucial to an employer's defense.
3. Not identifying when ADA leave should be granted
Some employers have trouble identifying when an employee should be granted leave under the ADA. A common misstep - an employee exhausts FMLA leave and the individual is automatically denied additional leave and is even terminated. Exhausting FMLA leave doesn't disqualify employees for leave under the ADA. It is also possible for an employee to qualify for ADA leave without qualifying for FMLA leave. Providing leave under the ADA is always an option and must be subjected to the "undue hardship" tests and not summarily dismissed as a reasonable accommodation.
A real case that happened to us:
An employee lost a leg below knee in an automobile accident. She took 12 weeks of job protected FMLA leave and returned to work but continued to have problems with the stump, causing her to need more leave time. After completing the
interactive process, the company determined that it would provide unpaid intermittent leave as an ADA accommodation, even though she had used all of her unpaid FMLA leave. Why did we provide unpaid medical leave as an accommodation? The EEOC may require leave as an ADA accommodation if the following circumstances exist:
Unlike FMLA which may not allow this practice, we were able to require the employee to provide us a doctor's note to document each absence.
To summarize, it is very important that employers understand the relationship between the FMLA and the ADA. Additionally, it is important to accept that we may have to offer unpaid, job protected leaves of absence to employees with a disability who aren't eligible for FMLA, and that the interactive process is a crucial part of the process of considering accommodating a disability. These steps are basic risk management actions for administering the Americans with Disabilities Act and its Amendment.
If you have questions about the administration of your ADA or FMLA programs, please give us a call at (336) 292-1911.
Graham Dail is a Senior Consultant and compliance specialist at JER HR Group.
"Recruiting For Success: A Recruiting Firm's Take on Diversity Recruiting"
By 2020, workers age 55+ will account for 25% of the U.S. workforce. As the workforce becomes increasingly comprised of Generation X and Millennials, and as our culture becomes increasingly diverse, the needs and talents of the workforce will shift accordingly. Therefore, the urgency to establish solid diversity recruiting practices is paramount to the growth and effectiveness of your organization.
Roger Anderson, Senior Recruiter at JER HR Group, says "Employers like diversity in their workplace. Different people approach/resolve problems differently. The idea being that better solutions come from diverse
input (Gender, Cultural, age)." By demonstrating that your company values differences, you can attract top talent that knows you will appreciate and utilize their skills and knowledge. This leads to retention, higher productivity and morale, and a positive impact on your bottom line.
Creating your Plan for an Effective Diversity Recruiting Initiative
To be successful in diversity recruiting, facts and data are crucial to selecting the most effective initiative. This data may include demographics for your industry and region as it relates to current levels of and changes in minority representation among levels and departments. This process also includes:
Plan to recruit each diverse subgroup using a customized data-driven approach. If your diversity recruiters use that data to drive recruiting, and if your organization makes diversity results part of performance appraisal, bonus criteria, and promotion criteria, the outcome will be positive. Examples of effective diversity recruiting tools include:
When it comes to leveraging social media, talent pipelines, and talent communities, diversity recruiting often falls short, so it is vital to identify and leverage all sources. Amanda Judd, Director of Recruiting at JER HR Group advises, "Concentrate on job boards, universities, networking groups and social media that have an influence with minority candidates."
Focus, Focus, Focus
Once you have your plan in place, it's time to implement. Here are some key points to focus on:
Key Point #1: As you enter the hiring process, examine your own biases in order to prevent them from ruling hiring decisions. Focus on the actual qualifications needed and on evaluating candidates on their individual merits.
Key Point #2: Select an inclusive interview panel who will bring diverse viewpoints, and who are respectful of different cultures and characteristics. Have a clear discussion with them before beginning the interview process. Make sure the panel understands diversity and cultural competencies for interviewing and hiring. Integrate diversity into the style and structure of the interview so that valid and critical information is gathered. In reviewing qualifications, consider how each applicant's similarities and differences might enhance diversity in the company.
A Simple Path to Inclusion
Diverse candidates may have greater fear about fitting into a company. Companies can use market research to identify and address these fears. Sometimes changes to the work environment help individuals mesh with and complement the company culture. The need for change should be evaluated first to give the diversity recruiting approach a solid foundation.
According to Jim Collier, who is also a Senior Recruiter with JER HR Group, "a wonderful place to start to see if your employees feel included is simply to ask them. This may sound exceptionally simple, and you may have one or two who say what they think you want to hear - but you'll be surprised by the number of employees who come out with the truth.
After you've had a conversation with these employees and collected the data, see if there is a pattern of employees not fitting in. Look for tendencies within the demographics. If you see a pattern that shows a lack of inclusion, it's your responsibility to take action. Ask why certain employees don't feel included, and then come up with a plan to fix the issue. Do something and your employees will love you. Don't, and the cycle may continue."
Finding the Right Leadership Model
Recruiters of diverse backgrounds are sometimes, but not always, the best recruiters. Recruiting skills, capabilities, and track record should be the criteria for selecting diversity recruiters. Effective recruiting should be personalized to the individual candidate. Diversity recruiters should make the time to personalize their approach to best reach the individual, including finding out what the candidate is looking for.
Diversity recruiting is the door to the future. Your employees and business will thrive, impacting your clients' confidence in your team to provide the best services and products to their organization and keep them coming back.
New OSHA Record-keeping Requirements
Electronic Reporting and Anti-Retaliation
Effective August 10, 2016
by H. Graham Dail, Senior Consultant, JER HR Group
Back to Timesheets and Punching Clocks?
How to Break the News to Workers
By now, you have probably heard about the proposed FLSA regulations, due to take effect on December 1, 2016. These regulations will increase the standard salary threshold for overtime exemptions to $47,476 per year for a full-year worker, which will offer overtime protections to millions more workers. At first glance, this sounds like a good deal for these workers, but there are two sides to every coin.
For employees, one of the most notable differences may be that they have to begin keeping a timesheet or punching a time clock when they haven't been doing so before. For example, if an exempt employee has been making $40,000 in annual salary, starting December 1, 2016, that employee will no longer be categorized as exempt and the employer will have to start paying them overtime for any hours worked over 40 in a work week. In order to monitor the hours worked, that employee will have to start keeping track -- thus the timesheet or punching a clock.
Before you decide to communicate with your employees, take some time to understand their points of view and determine the best way to bring them up to speed.
Here are some steps to take and questions to ask to help you communicate for the most positive results.
Step 1 - Determine how the company will cover the cost of compliance
Many organizations will be forced to modify their employee compensation and determine how they will cover the costs associated with compliance. Organizations will need to decide beforehand what they are going to do to counterbalance the overtime payments.
Step 2 - Create your communication in writing, complete with talking points.
Be honest, but try to stay positive. Don't forget to communicate the upside of the new rules.
Step 3 - Train your front line managers
The first communication should go to the front line managers. Train them well so they can answer the questions that will come up.
Step 4 - Communicate with employees
Once you've made your plan and trained your front line managers, it will be time to communicate it to employees. Communicate a lot and do it early to decrease the probability that employees will blame the company for the changes instead of the Department of Labor.
Have questions about the rules or how to communicate them? Feel free to give us a call at (866) 475-7687 or watch for details in the next newsletter about our July webinar on this topic, where a lawyer will speak and answer questions.
The employee sitting across your desk stares at you, a puzzled look on her face. Strange, as that's not the look you expected, and nothing like how another employee reacted at your earlier meeting.
Let's step back a few hours...read more...
Employers are required to comply with the Occupational Safety and Health Administration's (OSHA) accident, illness or injury reporting and posting requirements unless they are specifically designated as exempt. On February 1, 2016, most company work sites will be required to post a completed OSHA Form 300A, Summary of Work Related Injuries and Illnesses which occurred during 2015. The form must be signed by the highest ranking management official at the location and remain posted in the workplace for all employees to review until April 30, 2016. OSHA requires employers to post the 300A in a location that is easily accessible and frequently seen by all employees.
Amanda Judd, The HR Group's Vice President of Executive Search & Recruiting has earned the AIRS Professional Recruiter Certification. The certification demonstrates Ms. Judd's proficiency in using the most advanced online search tools and strategies to find passive candidates hidden on the internet. Congratulations, Amanda!
Payroll Solutions, located in High Point, NC, specializes in processing small business payrolls, providing the latest in paperless web-based services along with traditional payroll processing. Their demographic focus enables them to be very flexible and responsive to clients' immediate needs. Give them a call at 336-885- 5056.
The EEOC is preparing to issue enforcement guidance on what it considers workplace retaliation. While the current "enforcement guidelines for retaliation and related issues" is a proposal, it is a clear indication of how aggressively the EEOC intends to play ball as it pursues retaliation complaints in the next few years.
Their plan is to "make it as easy as possible to find retaliatory intent in every complaint the agency receives."
This is a continuation of a recent trend in which there has been a sharp uptick in retaliation complaints since 2009. For example, nearly 43% of all private sector charges filed in 2014 included retaliation, almost double the number of retaliation complaints in 1998.
The major issue in the proposed guidelines is not with the guidance itself, rather it is how broadly the EEOC interprets and defines each of the required elements.
It is clear that these guidelines are more than likely going into effect in the very near future. It is important that employers are proactive and aggressive in their compliance activities.