USCIS ISSUES UPDATE TO I-9

In March, we finally got the updated I-9 that was about 6 months late.  Now they have updated that I-9 which has a date of July 17, 2017.

Work site enforcement and I-9 audits and inquiries by ICE will continue to increase.  An updated I-9 form has been issued.  Your Company needs to make sure that it is completing the new Form I-9 for every newly hired employee, auditing its I-9 forms, complying with the E-Verify requirements as applicable, and otherwise review and follow the immigration compliance strategies we have previously taught, including on how to respond to SSA and identity theft inquiries.  As part of your compliance, you should implement the new I-9 as soon as possible.

The link for the new form is here: https://www.uscis.gov/i-9  note: you cannot use the Spanish version except in Puerto Rico.

On July 17, 2017, USCIS issued a revised Form I-9.  All employers must use the new Form I-9 by September 18, 2017.  The newest version of the Form I-9 is dated 07/17/17 in the bottom left corner, with the expiration date of 08/31/2019 in the top left corner. You can use either the 11/14/2016 or the 07/17/17 Form I-9 through September 17, 2017.  On September 18, 2017, however, use only the 07/17/17 Form I-9 and make sure the I-9 is fully complete and section 1 must be completed on the first day an employee works for you.

There were changes made to both the Form I-9 instructions and the Form I-9 itself.  Make sure to post the new Form I-9 instructions on the wall where you have your required employment posters.  And, have the List A, B and C page available for employees when they complete the I-9 form.   Do not ask employees for specific types of documents to complete the I-9 form.  Always let the employee choose one document from List A or one document from List B and C.

The changes to the new Form I-9 are minimal.  One change is that the old sentence that read employee must complete the Form I-9 “no later than the end of the first day of employment” was changed to read that Section 1 must be completed “no later than the first day of employment.

Another change is that on the Form I-9 instructions, the DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to the Immigrant and Employee Rights Section to reflect the new name of the Office of Special Counsel (“OSC OF DOJ”)that was changed on January 18, 2017.  This is the government  agency that handles discrimination charges if a company is considered overzealous in asking for specific or additional documents, or is discriminatory in how it handles SSN mismatches, or if a company targets or singles our individuals with EAD authorizations or permanent resident cards differently than others.

And, another change is that on the Form I-9, List C on the List of Acceptable Documents, it was revised to add the Form FS-240 Report of Consular Birth Abroad and all the certifications or reports of birth issued by the Department of State were combined into one number on the List of Acceptable Documents.  The other List C documents (with the exception of List C) were then renumbered.

Please ensure that your Company implements the new Form I-9 before September 19, 2017.  It may also be a good time to conduct an internal I-9 audit and I-9 training to help ensure proper compliance with the immigration, employment verification, and E-Verify requirements, as applicable.  Let us know if you want us to complete any I-9s training with booklets and certificates or do any I-9 audits of I-9 forms etc.   Please stay vigilant on your internal I-9 audits and ensure your team is trained on completing I-9 forms, avoiding discrimination, know how to respond to government investigations, and are following protocols on responding to police, DES or other third party inquiries about identity issues.  Keep safe in the hot summer and take time now to audit your I-9 forms.

The fines have increased significantly.  Companies who previously had one audit are likely on the list for a second audit.  Those companies who already experienced a second I-9 audit and violations were noted, are likely to see a third audit so it pays to take the time to ensure your I-9’s are in compliance.  Please let us know if you have any questions or if there is anything we can do to assist you.  HR Mobile Services, Inc. will continue to monitor and update your current and future employee packets and forms to comply with State and Federal regulations.

UPDATE TO CALIFORNIA IRRIGATORS AND OVERTIME

Late last  year and early this year we discussed the new Agriculture Labor laws going into effect in California.  Mostly it was centered on the reduction of hours over time from a 10 hour work day to an 8 hour work day.

However, in the language of the bill was a very important phrase that said this bill affects “all Agricultural workers”.  This created quite a stir among lawyers and the split was about 50\50.  Some took this literally to mean that all workers in the agriculture profession, were now subject to the same rules and there would be no exceptions.  Others, pointing to the history going back the the 1930’s that exempted irrigators from the overtime regulations, that this would be cleaned up by the Labor Commissioner who is charged with rewriting the Wage Orders to comply with the legislation.

So far, we have not seen a new Wage order 14 so the one that is on the books is all we have to direct our work for now.

At the beginning of the year, we advised people, based on legal opinions, to continue treating irrigators as exempt employees until we heard from the Labor Commissioner.  At that time, we figured we would see something in writing by March and since it was raining, most employers were not working irrigators over 10 hours a day.  However, now we are into July with no definitive answer.  So, at this point, we are changing our recommendations, and it is our opinion that you SHOULD pay irrigators for overtime if they work over 10 hours in a day or over 60 hours in a week, just as you do other workers.

We base this opinion on the following:

  1. Previously, if the decision came down that you would have to pay overtime to irrigators going back to January 1, 2017, we were most likely not talking about a lot of hours and the employer can pay it out in one check and would most likely avoid any penalty fines.
  2. Now that we are in the heat of the year and irrigators are working full time, there is more possibility of them working overtime and the bill to pay back-wages is increasing.  At this time, it would be better to pay overtime incurred since July 1 and if we hear later that you must pay overtime from January 1, you can still pay that smaller amount in one check and avoid penalties.
  3. We don’t want to create a situation where you have many employees who have moved on to other employers and they come back to you and accuse you of not paying overtime.  This becomes more of an issue as time goes by.

The decision to pay overtime is still your at this writing, but we feel it is the better position to pay it now and avoid more trouble potentially in the future.  Even if the Labor Commissioner ultimately corrects the wording or interpretation and exempts irrigators from overtime, it is a small price to pay for avoiding litigation later.

WORK WEEKS UPHELD BY CALIFORNIA SUPREME COURT

Monday, the California Supreme court voted 7-0 in favor of the seven days in the same  work week interpretation.  This means that, if you define your work week, as long as an employee has one day off in that workweek, they are not eligible for premium ovcr-time payments.  They rejected the interpretation that employees should only work 6 days and affirmed the wording that employees may only work 6 days in the same work week.

Here is how it works.  If your work week is Monday through Sunday, and the employee works every day in the week, the hours they work on Sunday would be subject to the 7th day penalty where the first 8 hours are at time and a half and all hours after the 8th hour are double time.  However, if an employee worked Wednesday to the following Wednesday, there is no violation of the seven day rule because they had at least one day off in each work week as defined.

This is why it is so important to establish and notify your employees of your work week in your employee handbook and other documents.  It does not have to align with paydays, but it is preferable.  Remember, if you pay twice a month, it is possible that a payday falls in the middle of a pay period and you may miss an employee working through the seven day rule because part falls in 2 different pay periods.  You are still responsible for paying the penalty overtime if this happens.  You would apply it in the pay period where the seventh day was worked.

Overall, this is a victory for employers who have been following these rules as written for many years.  To change them now would have been a huge hit to employers across California.  Having one day off a work week is good for employer and employee, but a new law of 1 day off in any seven days could be hard to adjust.  This is especially true of businesses such as restaurants where you have high turnover, people calling in sick and then you have to ask another employee to come in to cover a shift.

So, rejoice, the courts did the right thing.  The best way to keep the government out of these things is to pay properly, follow the law and make sure your competition is doing the same.

UFW GUILTY OF FAILING TO PAY ITS EMPLOYEES FOR HOURS WORKED!!

Yes, you are reading this correctly.  The Union that made its name on protecting the rights of Agricultural workers will have to pay out over $885,000 in back pay and another $235,000 in penalties.  The Union is going to appeal, but many of you will find this gratifying.  There is not much more to report on this right now, but this could be a turning point for politician who fall over themselves to align with this organization that only represents about 3% of the agriculture workers in California.  Perhaps we will see our politicians using a little more common sense.  Or, maybe we are hoping for too much.  Still, the irony of this story is not lost on agricultural employers everywhere.