I-9 Forms: New Forms Required

You must be using the new I-9 Form. As I noted in my March blog, the U.S. Citizenship and Immigration Services (USCIS) revised the Employment Eligibility Verification Form I-9. Click to get Form. All employers are required to complete a Form I-9 for each employee hired in the United States.

Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions to both employees and employers. The Department of Homeland Security has published a Notice in the Federal Register informing employers of the new Form I-9.

Effective May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

 If you have any questions, contact the HR HelpLine.

I-9 Forms: New Forms Required

U.S. Citizenship and Immigration Services (USCIS) today published a revised Employment Eligibility Verification Form I-9 for use. Click to Get Form. All employers are required to complete a Form I-9 for each employee hired in the United States.

Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions to both employees and employers. The Department of Homeland Security has published a Notice in the Federal Register informing employers of the new Form I-9.

Effective 03/08/13:

• Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.
• Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.
• After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

The revision date of the Form I-9 is printed on the lower left corner of the form.  Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

 If you have any questions, contact the Dacri HR HelpLine.

 

EEOC Reports Nearly 100,000 Job Discrimination Charges

The Equal Employment Opportunity Commission reported that it received nearly 100,000 workplace discrimination claims during its 2012 fiscal year. These claims do not include those filed through state agencies. Retaliation, race and sex discrimination which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The Commission further reported that it obtained $365 million for those who brought forth these claims.

To prevent discrimination from occurring in your company, you should do the following:

Sick Leave Still Bad For Business

Two years ago when Maine was considering mandating paid sick leave, I wrote that I thought it was bad for business. I continue to believe this. As I stated then, no one can argue that it makes sense for employees to stay home when not feeling well.  The last thing anyone wants is to have someone preparing or serving your meal who is not well—and that’s what happens when the choice is between staying home and not receiving pay or working sick because you can’t live without your paycheck.  It is a terrible choice to have to make.

Unfortunately, as noble as the various bills being proposed throughout the country may be, as right as it feels, it is bad policy because it undermines the businesses it purports to support and ultimately hurt all employees.  Small businesses cannot afford another mandate.  Mandatory sick leave will be cost prohibitive and an administrative nightmare to manage, particularly on top of the other leave policies mandated under state and federal law.  Managing time-off policies are not easy.  Employers still struggle making sense out of the federal Family and Medical Leave Act (FMLA) and that’s been around 20 years!

One can empathize with any worker who has to work ill.  Ideally, businesses will see that sick leave benefits, voluntarily offered, provide them a competitive advantage. But mandating it is not the right thing to do. Smaller organizations often cannot afford these kinds of benefits and another mandate could potentially put them under.

What do you think? Share your comments and opinions below.

Earned Benefit Time & Payout at Termination

Understanding an employer’s obligation regarding payout of vacation pay when an employee quits or is terminated can be very confusing, particularly when Paid Time Off (PTO) and Earned Benefit Time (EBT) is thrown in the mix. Each state has different laws, but we will focus in this post on Maine.

Maine does not require employers to provide paid vacation. However, if an employer offers it, any accrued and unused vacation pay must be paid out at the time of termination. But what happens if an employer combines vacation time, sick time, and other time off into either Earned Benefit Time or Paid Time Off? Again, the law is only concerned about the vacation time.

If you can separate the various time-off pieces, then the only obligation you would have is the vacation time. If, however, you cannot, you should look at the following:

1. What does your policy say?
2. What is your past practice? How have you handled it in the past?

If your policy and practice does not differentiate between the various time-off pieces and simply treats them all as “earned time,” then you have no obligation to payout at termination. Your accrual should also focus on the earned time without differentiating. And finally, you may also want to state that your “earned time has no value at separation.”

A well-written policy that includes these components and has been reviewed by counsel will minimize any confusion on how to handle this benefit at termination.

For addition assistance, contact the Dacri HR HelpLine by clicking here.

Voting: Some States Require Employee Time Off To Vote

November 6 is election day and many of your employees will want to vote. You should know that some states have enacted laws requiring employers to allow employees time off to vote, sometimes with pay, subject to the individual’s hours of work and the times when the polls are open. In some states, employers are required to post notices in advance of an election, advising employees of their rights. Violation of many of these statutes is a misdemeanor punishable by a fine.

Different states have different requirements. Here the requirements in the seven states in the Northeast:

Connecticut: No specific laws requiring time off.

Maine: No specific laws requiring time off.

Massachusetts: Employers are required to grant an employee time off to vote during the first two hours after the polls open, if the employee requests time off during that period. Only those who are employed in a “manufacturing, mechanical, or mercantile establishment” are eligible for time off under this provision. Time off for voting need not be paid.

New Hampshire: None, but if a person must be physically present at work or in transit to and from work from beginning to end of polling hours, she may apply to vote by absentee ballot.

New York: Employees who do not have 4 consecutive non-working hours between polls opening and closing, and who do not have “sufficient” non-working time to vote, are entitled to up to 2 hours paid leave to vote. Employees must request the leave between 2 and 10 days before Election Day. The employer can specify whether it be taken at beginning or end of shift. Employers must post this rule conspicuously 10 days prior to election.

 Rhode Island: No specific laws requiring time off.

Vermont: No specific laws requiring time off.

Employers may want to post voting times for employees and state laws for covering absentee ballots.

 Rick Dacri

Dacri & Associates, LLC

I-9 Form Set To Expire

The I-9 form or the Employment Eligibility Verification Form expires Aug. 31, 2012. All employers must complete and retain a Form I-9 for all citizens and noncitizens they hire for employment in the United States. However, the government has not issued an updated or replacement form, as of this date. Therefore, employers are advised to stay current on changes to the Form I-9, and prepare to update their process when the new version is released.

Discrimination Laws: Massachusetts Protects Gender Identity

(This post was written by attorney Karen Aframe of Bernstein Shur)

Effective July 1, 2012, “gender-identity” will become a protected status under Massachusetts anti-discrimination laws. This means that private employers with at least six employees in Massachusetts, even if headquartered elsewhere, will be prohibited from considering gender identity when making decisions regarding hiring, promotion, termination, or any other terms and conditions of employment. The new law also prohibits harassment on the basis of gender identity.

The Massachusetts law defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” As a result, this statute will protect persons who have undergone sexual reassignment surgery, as well as persons who behave or appear in a manner that is not traditionally associated with the person’s physiology or sex at birth.

Employers familiar with Massachusetts anti-discrimination law may wonder if this is actually a change in the law; in 2001, the Massachusetts Commission Against Discrimination ruled that sex discrimination included discrimination on the basis of gender identity and gender expression. While some Massachusetts courts issued similar decisions or found protection for transgender persons on the basis of disability or sexual orientation, other courts have declined to do so. The new statute clears up any confusion in the court cases. Massachusetts now joins Maine, Vermont, Connecticut and Rhode Island and 11 other states and the District of Columbia which provide workplace protection to transgender and transsexual persons.

While New Hampshire has not enacted similar legislation, New Hampshire law suggests that transsexualism is protected by N.H. RSA 354-A. At least one New Hampshire court held that transsexualism is a protected “handicap” under the state discrimination law, N.H. RSA 354-A. Thus, employers with New Hampshire employees also should adopt practices to avoid discrimination and prohibit harassment of trans-gendered and transsexual persons to avoid potential litigation. In light of these developments, employers with employees in any New England state, other than New Hampshire, should update their equal employment opportunity and harassment policies to make sure that they include gender identity and/or gender expression as a protected status. All New England employers should consider the impact of these developments on other employment practices such as dress codes, access to bathrooms and reasonable accommodations. Employers who learn of an employee’s transgender status, even through a simple application question such as “other names used,” will need to take precautions to ensure that gender identity is not considered in the hiring process, just as employers have learned to do with age, race, religion and any other legally protected status.

New ADA Regulations Issued: EEOC Rules Mean Virtually Everyone Is Disabled

 (This posting was written by the law firm Seyfarth Shaw)

 The Equal Employment Opportunity Commission’s long-awaited regulations under the ADA Amendments Act (“ADAAA”) has been issued. The regulations will become effective on May 24, 2011. Much of the new regulations and accompanying guidance is unsurprising and comports with the language of the ADAAA. For example: the statute is to be construed broadly; employers should focus on accommodations, as opposed to questioning whether someone is disabled; and mitigating measures including medicine, other treatments, and prosthetic devices must be set aside in analyzing whether an individual is “disabled.”

 What is surprising, and doubtless game-changing, is the agency’s decision to list conditions that, according to the EEOC, will “virtually always” be covered impairments. The EEOC says those impairments are not per se disabilities, as it must if the new regulations are to resemble the original statute. Yet, by characterizing listed conditions as “virtually always” covered, the agency has in effect labeled tens of millions of Americans disabled.

 The EEOC did not stop there. Rejecting the views of business organizations and employment attorneys, the EEOC has made clear that any impairment – no matter how brief in duration – can be a covered disability. By those changes and others, the EEOC’s new regulations will further burden employers, not only with compliance challenges but also litigation that will inevitably follow the EEOC’s expansive approach.

Discrimination and Retaliation Claims Set a Record in 2010

(This post was writen by Attorney Glenn Israel  of the law firm Bernstein Shur) 

 The U.S. Equal Employment Opportunity Commission (“EEOC”) recently reported that it received a record number of claims from employees in 2010 – nearly 100,000 new claims. Retaliation claims are the most frequently filed, but disability discrimination claims are on the rise, increasing by nearly 20 percent in 2010, and sex discrimination and religious discrimination cases continue to increase as well. Not surprisingly, the EEOC reports that the cost to employers of resolving these claims also continues to increase. We have seen a similar trend here in Maine. More of our clients are being sued for discrimination and retaliation, and the cost to resolve these claims has steadily increased. We also are seeing a marked increase in claims under the Maine Whistleblower’s Protection Act.

 There are a number of reasons for this disturbing trend. The down economy has caused increased layoffs and decreased job security which has resulted in a loss of employee morale, decreased employee loyalty, and increased employee desperation. These factors have driven more employees to commence litigation over real or perceived injustices in the workplace. Experts predict that this trend is likely to continue for several years.

 Now, more than ever, it is important for employers to do everything they can to avoid becoming defendants in discrimination or retaliation suits. There are some basic steps that you can take that do not cost very much and greatly reduce the likelihood that you will find yourself on the receiving end of a law suit. So, what can you do?

 Develop Policies – Every employer should have an anti-discrimination and harassment policy that addresses all forms of discrimination and harassment. It also is advisable to have policies that affirmatively require managers to consider and document objective criteria when making decisions regarding hiring, promotions, discipline, and discharge.

 Support and Follow Policies – Policies are only useful when they are fully supported by senior management and are consistently followed. Middle managers and rank and file employees all should understand that senior management is committed to following the established policies.

 Provide Training – Policies are not always self-explanatory Managers and employees must be educated regarding their roles and responsibilities in following and enforcing policies. This is the area where most employers fail. Once a policy has been developed and is fully understood by senior management, it is vitally important to make sure that all middle managers and employees share that understanding.

 Implement an Effective Complaint Resolution Process – Employees need to know how to bring problems to the attention of management and they need to be encouraged to do so. Managers need to know how to respond to employee complaints and concerns. To accomplish these goals, you need to implement a complaint resolution process and provide training to all managers and employees regarding how the process works.

 Maintain Complete Documentation – In the event that you are sued for employment discrimination, your best defense is a well maintained personnel file. It is important for employers to establish policies and procedures for documenting job performance and discipline issues, and to train all management personnel to follow these policies and procedures.  This is another area where many employers fail to protect themselves, either by not establishing policies and procedures in the first place or by not consistently following them. 

 It is clear that 2011 will be another challenging year for the economy and for employers. Employers may be tempted to avoid spending the time and money necessary to develop new policies or train managers and employees. However, a modest investment in anti-discrimination policies and training now can reduce the risk of costly claims later.