Frankly Speaking: Increased Focus on Immigration Means More I-9 Audits

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I’m having one of those days when distractions are swirling all around me. My wife, Becky (a.k.a. Mimi), and I (a.k.a. Papa) are watching our grandchildren, and today’s a snow day. Kenzie (4) is yelling, “Mimi! Connor touched my sandwich!” Connor (7) is yelling, “Kenzie ate one of my blueberries!” And the cat is sticking her nose in my coffee. Now, the snarky gremlin in my head is wide awake because of all the extra stimulation. [I’m not snarky; I provide unfiltered observations and commentary.]

I threw a dart at my compliance dartboard to choose a topic, and it landed on one of my favorite areas: Form I-9 compliance! [He doesn’t have a compliance dartboard; he’s just an I-9 geek.] Wait! Before you decide to skip this article, hear me out. [I think you just drank a whisker floating in your coffee.] A few facts point to significantly increased enforcement of I-9 compliance by U.S. Immigration and Customs Enforcement (“ICE”) in the coming months and years. 1. In President Trump’s first term, the number of I-9 audits was at an all-time high. 2. The Trump administration has quickly implemented extensive changes in U.S. immigration policy and work authorization enforcement, clearly a top priority in his second term. 3. The administration has expressed the goal of at least doubling the number of I-9 audits conducted by ICE.

What’s an I-9?

Federal law requires all employers, regardless of size, to properly complete and maintain an I-9 form for every employee. However, most employers have no idea whether their I-9 forms are completed correctly. [It pains me to say this; he’s not wrong.] While there are several reasons to be concerned about whether your company’s I-9s are completed correctly, the reason that gets most employers’ attention is the penalties. Effective 01/02/2025, “Civil penalties for I-9 paperwork violations”[i] were increased to a minimum of $288, up to $2,861…PER FORM. Penalties are assessed based on the percentage of forms containing one or more errors. For example, Snarky, Inc. [I know you’re referring to me] has 100 I-9 forms subject to an audit. Error-related civil money penalties would be calculated based on the following schedule:[ii]

  • 1% to 9% – $288 per form
  • 10% to 19% – $717 per form
  • 20% to 29% – $1,148 per form
  • 30% to 39% – $1,579 per form
  • 40% to 49% – $2,007 per form
  • 50% to 100% – $2,861 per form

If 75 percent of Snarky, Inc. I-9s contain at least one error—the national average error rate—penalties would be in the neighborhood of $214,575! [I think that got their attention.]

Don’t ASSUME You’re Doing Anything Right

Let’s start with the most basic point and work up from there. First, one of the most common reasons for I-9 errors is that the person or people tasked with completing I-9 forms have not been trained to complete the form correctly. Looking at our example above, when Snarky, Inc. promoted EC to office manager, her new responsibilities included completing I-9 forms. Without the benefit of training and assuming she knew how to complete the form, EC repeated the same three common mistakes on all 75 I-9 forms she completed. Later, EC was replaced by MK, an experienced office manager who had received training on completing I-9 forms. All 25 I-9 forms MK completed were perfect.    

When ICE selects an employer for a Form I-9 audit, the goal is to identify technical and substantive paperwork violations, document fraud, and whether the employer has knowingly hired unauthorized workers.

As noted above, technical and substantive paperwork violations are very costly and add up quickly. The most common I-9 violations include:

  • Failing to complete and maintain an I-9 form for every employee.
  • Using an expired I-9 form. All employers must be using the form with “Form I-9 Edition 08/01/2023” in the lower left corner and either “Expires 07/31/2026” or “Expires 05/31/2027” in the upper right corner. *This is important whether you’re using the hardcopy form available from USCIS or an electronic version from a payroll, onboarding, or I-9 service provider.
  • Failing to complete the I-9 within the required timeframe. The employee must complete Section 1 on or before their first day of work. The employer must complete Section 2 within three business days of the employee’s start date.
  • Missing or incomplete information, such as dates, document numbers, and/or signatures.
  • Failing to ensure the employee attests to their citizenship or immigration status, review and verify the proper documents, or reverify an employee’s expiring work authorization (when necessary).

In addition, there’s another error that an increasing number of employers are making. Employers using electronic I-9 services – regardless of whether through a payroll provider, onboarding service, or other source – assume their I-9 forms are correct, complete, and properly maintained. Further, employers often fail to recognize that they, not the service provider, are responsible for any fines assessed for I-9 errors.

With the potential for financially devastating penalties only a random ICE I-9 audit away, employers have a few options. The most obvious but least effective option is to do nothing. Employers who choose this option accept the financial risk of existing and future violations. Another option is to conduct an I-9 self-audit. However, because self-audits rarely identify all  the errors, they’re often ineffective. Remember, just one error on a form triggers a fine.

The best option is to engage an expert to conduct an assessment of the company’s I-9 forms, documentation, procedures, and practices. [Let me guess, you know someone with I-9 expertise.] I’ve reviewed and helped clients correct thousands of I-9 forms. I’ve also consulted on the development of an electronic onboarding program, including ensuring compliance with the myriad of complex I-9 regulatory requirements. And, some would say, most importantly, I’ve participated in multiple I-9palooza conferences! [I’m still shocked that I-9palooza is a real thing.]

If you’re not 100 percent sure that all your I-9 forms, documentation, procedures, and practices comply with the regulatory requirements, let’s discuss an I-9 assessment. Compared to the financially staggering fines, an assessment is a minor investment. Please email us at hranswers@hrcexperts.com, or call 585-565-3900 for more information.

[i] Federal Register, Vol. 90, No. 1, 01/02/2025, Rules and Regulations, Table 2―U.S. Immigration and Customs Enforcement Civil Penalties Adjustment https://www.govinfo.gov/content/pkg/FR-2025-01-02/pdf/2024-31204.pdf

[ii] Estimated based on previously published civil money penalty schedules.

Frankly Speaking is written by Frank Cania, president of HR Compliance Experts LLC and his snarky alter ego gremlin, Mort.

©2025 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

Frankly Speaking: What’s old is new again

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Frank Cania circa 1974

As predicted, 2024 is another active year for new and updated employment-related legislation and regulations for employers to comply with. That’s why I’ve spent countless hours meeting with state and federal legislative offices and regulatory agencies about employment laws and regulations over the past twenty-plus years. [After taking an informal poll of intelligent human beings, I’m comfortable saying you have a warped personality. I found that people would choose to do anything – including getting a root canal without anesthesia – rather than meet with legislators.] If you’re a new Frankly Speaking reader, I channel the commentary in [brackets] from my snarky [you mean brilliantly witty] alter ego.

To hit the ground running, I joined more than 50 HR professionals from throughout NY State in Albany on Tuesday, January 30th, for scheduled meetings with the offices of state senators and assembly members. The topics of those conversations, which I share below, will impact every business operating in NY State. [You realize that people can simply skip to that part without reading anything in between, right?]

Out with the new and back to the old

According to the fashion websites I frequent daily, [OK, anyone who has ever seen you knows that’s a lie!] the outfit I wore in the 1975 Montgomery Ward Family Fashion Show (pictured above) is a retro fashion comeback for 2024! [Oh my! I don’t even know where to begin with that.] The same can be said for the “new” Final Rule on the proper classification of independent contractors recently implemented by the federal Department of Labor (“DOL”). So, if your business issues one or more 1099 NEC forms, please don’t skip this section.

The DOL has long asserted that businesses excessively misclassify workers as independent contractors. Based on my experience, businesses practicing intentional wholesale misclassification of workers are the exceptions. For the rest, worker misclassification is generally unintentional, based on the practicality of the situation, and due primarily to confusion regarding the rules. Then, the confusion is made worse because multiple state and federal agencies have promulgated their own rules in this area. So, for example, employers with operations in states where laws governing independent contractor classification are more restrictive – such as CA, NJ, and MA – may not understand that they must follow the more stringent rules in those jurisdictions.  

The new Final Rule, titled “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” (“FLSA”), replaces one that took effect in 2021. Recycled from the Obama Administration, the 2024 version provides a six-factor test for determining independent contractor classification and focuses on whether each factor indicates the worker is economically dependent upon the employer.

The six factors are:

  1. Opportunity for profit or loss depending on managerial skill: This factor focuses on whether the worker exercises managerial skill that affects their economic success or failure. Activities like actively marketing their services, negotiating contracts, and deciding which jobs to perform and when to perform them would help meet this test.
  2. Investment by the worker: This factor evaluates whether the nature of the worker’s investment is capital or entrepreneurial. While costs such as tools, equipment, and the worker’s labor are not evidence of capital or entrepreneurial investment, paying expenses like rent, business insurance, and marketing services would satisfy this test.
  3. Degree of permanence of the work relationship: This factor analyzes whether the work relationship is for a definite period or indefinite. Definite or sporadic relationships indicate independent contractor status, while indefinite or continuous relationships indicate employee status.
  4. Nature and degree of control by the employer: This factor assesses whether the employer or the worker has substantial control over essential aspects of performing the work, including the worker’s schedule, supervision, and ability to work for others.
  5. Whether the work is an integral part of the employer’s business: This factor considers whether the work performed is critical, necessary, or central to the company’s principal business. If so, that indicates the worker is an employee, not an independent contractor.
  6. The worker’s skills and initiative: This factor examines whether the worker uses specialized skills necessary to perform the work and whether those skills support an independent business entity rather than the worker being economically dependent on the employer’s business.

Below are a few questions that are common when I discuss this topic with employers:

Q: What if the worker prefers or insists on working as an independent contractor?

A: The short answer is that it doesn’t matter. The classification rules apply regardless of whether the worker prefers or will only provide services as an independent contractor. I’ve seen several instances where workers insisted on being treated as independent contractors. Then, after a DOL auditor found they were misclassified, the employers were required to pay those same workers thousands of dollars in “unpaid overtime” and 100 percent of that amount in liquidated damages.

Q: Do the independent contractor rules apply if we have a written contract with the worker?

A: Yes, the rules still apply. I’ve seen written agreements that help support independent contractor classification and many more that provide evidence against it. For example, agreements that state the worker reports to a member of management, must provide weekly status reports, and is responsible for following all workplace policies.

Q: Are there any other potential issues and costs if an employer misclassifies workers as independent contractors?

A: Yes. Think of misclassifying workers as a Pandora’s box. [What does a music streaming service have to do with this?] Once identified (the box is opened), several potential issues may be unleashed. The misclassifications likely violated state and federal wage and hour, tax, immigration, healthcare, and employee benefits laws. The costs associated with these violations may include, but are not limited to:

  • Local, state, and federal payroll taxes on the audit findings (previously unpaid wages/overtime);
  • Local, state, and federal taxes – including the unpaid FICA taxes – as well as penalties and interest on the previously unpaid taxes;
  • A claim for employee benefits that the worker didn’t receive because of the misclassification, such as 401(k), health and welfare benefits, vacation and sick leave, bonuses, and other benefits provided to employees in the same or similar positions.

Q: How can we eliminate the risk of misclassifying workers?

A: The only way to eliminate the risk is to eliminate the source of the risk – in this case, independent contractor relationships. Short of that, employers can minimize the risks associated with misclassifying workers by actively ensuring compliance with all applicable state and federal rules and regulations. That means:

  • Conduct a worker classification review based on the framework provided in the DOL Final Rule and any state-specific rules. [I’m sure this is something HRCE would be happy to assist with; am I right?]
  • Develop a plan to address any issues identified in the review, including quickly onboarding misclassified workers as employees.
  • Develop and implement policies and procedures for properly classifying workers going forward, including a periodic review of independent contractor relationships to ensure ongoing compliance as applicable rules and regulations change.
  • Consider engaging legal counsel with experience in worker classification to oversee and advise on the above actions.

NY State Updates

I’m sure you know NY State has minimum wage and salary threshold laws (which increased effective January 1, 2024). However, are you aware that the state also has laws and regulations regarding how employers can pay employees and even which employees can look to the DOL for assistance with wage theft claims? For example, NYLL §192 requires employers to obtain written permission from employees before they are allowed to “directly pay or deposit the net wage or salary of such employee in a bank or other financial institution.” The exception is employees working in “a bona fide executive, administrative, or professional capacity” with weekly wages of $900.00 or more. Effective March 13, 2024, the weekly wage limit for coverage under §192 will increase from $900 to $1,300.

Similarly, effective March 13, 2024, the DOL will reject wage theft claims from employees working in a bona fide executive, administrative, or professional capacity with a weekly wage of $1,300 (currently $900) or more. For these employees, the only avenue available to recover unpaid wages remains a civil lawsuit against the employer. [I have no idea what any of that means, but please don’t try to explain it!]    

Employers should also be aware that the NY State Freelance Isn’t Free Act is effective May 20, 2024. Patterned after the NYC law of the same name, the Act provides protections for freelance workers who are paid at least $800 for their work, including for multiple projects, over a 120-day period. Further, employers must provide freelance workers with a written contract and pay them within 30 days unless the parties agree to another payment schedule in advance. Freelance workers may not be retaliated against for exercising their rights under the Act, and they may take legal action to recover double damages and attorneys’ fees.

My field trip to Albany

As I mentioned above, my meetings in Albany centered around topics important to employers. First, in December 2023, Gov. Hochul vetoed Senate Bill S3100A, which would have banned non-compete agreements. The bill, which did not allow for exceptions – such as for non-competes entered into in conjunction with the sale of a business – also required the courts to award liquidated damages of $10,000.

With seemingly unscrupulous employers requiring low-wage employees to sign non-compete agreements, it’s clear that some guardrails are necessary. But a blanket ban is not the answer. With State Senator Sean Ryan announcing his intention to introduce a revised bill, we urged the legislature to take a measured approach in drafting legislation that balances the needs of both employees and employers.

I saved the best for last…[I don’t know if I can handle any more excitement!] With NY being the only remaining state with a COVID sick leave mandate, I was eager to discuss a sunset of the statute with anyone willing to listen. The good news is that two viable paths exist to sunset this mandate. First, bills have been introduced in the legislature to end the mandate. Without going into the minutia, [I could kiss you for skipping the boring details!] these bills offer somewhat complex but achievable processes. Secondly, Gov. Hochul included a proposal in her FY 2025 budget that, if passed, will sunset the COVID sick leave law on July 31, 2024. I assure you that my message was loud and clear: we don’t care how; end the COVID sick leave mandate as soon as possible!  

Please email us at HRAnswers@hrcexperts.com for more information on the the topics covered in this post, or any other HR compliance-related topic. Remember, when you only have one chance to get it right, you need HR Compliance Experts. [Very punny. I’ll bet you came up with that.]

If you have questions about compliance with local, state, and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.

Did you enjoy Frankly Speaking? Then let us know at HRAnswers@hrcexperts.com! Also, feel free to share it with friends and colleagues. 

Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

By clicking submit, you agree to share your email address with the site owner and Mailchimp to receive marketing, updates, and other emails from the site owner. Use the unsubscribe link in those emails to opt out at any time.

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© 2024 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking: Minimum Wage Increased on Jan 1, and That’s Just the Beginning!

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2024 Happy New Year

Welcome to 2024! On behalf of the entire HR Compliance Experts team, I wish you a year filled with good health and prosperity.

Let’s jump right in and look at what 2024 brings by way of new and updated regulations. [Are you really doing this? At least give the people who, for some reason, read your posts time to figure out what day of the week it is.] If you’re a new Frankly Speaking reader, the commentary in [brackets] is channeled from my snarky alter ego. [Snarky is so 2023; you need to find something new. Brilliantly witty seems more fitting.]

NY State Minimum Wage & Salary Threshold Increases

I’m sure most employers will agree that there’s nothing like starting the year with an increase in the minimum wage and minimum salary requirements! Well, several governors were happy to oblige.

In the “nothing like waiting until the last minute” category, Gov. Hochul and the NY State Department of Labor once again took first place. [You expected something different?] On December 27, 2023, the state issued a notice in the NY State Register that the NY DOL had adopted its previously proposed wage regulations. Effective January 1, 2024, the minimum hourly wage rates and minimum salary thresholds increased as follows: 

AreaMinimum Hourly WageMinimum Weekly & Annual Salary
NY City and Nassau, Suffolk, and Westchester Counties$16.00$1,200.00  ($62,400.00)
Remainder of NY State$15.00$1,124.20  ($58,458.40)

The 2024 NY State Budget, and new NY DOL regulations, also include automatic wage increases for 2025 and 2026:

Effective DateAreaMinimum Hourly WageMinimum Weekly & Annual Salary
01/01/2025NY City and Nassau, Suffolk, and Westchester Counties$16.50$1,237.50 ($64,350.00)
01/01/2025Remainder of NY State$15.50$1,161.65 ($60,405.80)
01/01/2026NY City and Nassau, Suffolk, and Westchester Counties$17.00$1,275.00 ($66,300.00)
01/01/2026Remainder of NY State$16.00$1,199.10 ($62,353.20)

Then, beginning on January 1, 2027, the NY minimum wage will be based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (“CPI-W”) for the Northeast Region. While this plan doesn’t necessarily guarantee an annual increase to the state’s minimum wage and salary thresholds in 2027 and beyond, [Right, and I’ve got a great deal for you on a bridge in Brooklyn!] the circumstances under which the DOL would temporarily suspend an automatic increase are very limited. The good news is [I can’t wait for this one!] the DOL will post the adjusted rate no later than October 1 each year, ensuring employers have at least three months to prepare for the new minimum wage to take effect.

Employers located outside NY State should note that these minimum hourly wage rates and minimum salary thresholds apply to all employees working in the state, including employees working “remotely” from their homes or other locations within NY State.

It’s also a good time for employers to review their compliance with the overtime exemption regulations – including the salary basis, minimum salary, and duties requirements. The minimum salary thresholds above apply to employees who qualify under the state’s Executive and Administrative exemptions. [Excuse me, Mr. Compliance Expert, but what about employees who qualify under the Professional exemption?] What many employers don’t realize is that NY does not have a state-specific Professional exemption for employees “employed in a bona fide professional capacity.” Therefore, employees in NY State who qualify under the federal Professional exemption are subject to the federal salary threshold, currently $684.00 per week ($35,568.00 annualized).

Employers with employees classified as exempt under the federal Professional exemption should know that the federal DOL has issued a proposed rule to increase the minimum weekly salary for the Executive, Administrative, and Professional exemptions to $1,059.00 per week ($55,068.00 annualized).  

In addition, although the NY State minimum salary threshold for the Executive and Administrative exemptions is currently higher than the federal DOL’s proposed $1,059.00 per week, the state’s minimum salary threshold for the executive and administrative exemptions is “inclusive of board, lodging, or other allowances and facilities.” Conversely, the federal minimum salary threshold must be “exclusive of board, lodging, or other facilities.” So, if the proposed federal rule is adopted, employers that use housing or meal allowances to meet the NY State minimum salary threshold will need to remove the housing or meal allowances from the calculation to ensure they also meet the new federal minimum salary threshold. [I have no idea what you’re talking about, but OK.]

More States Increased Minimum Wage on Jan 1

New York is not the only state that increased its minimum wage on January 1, 2024. According to the National Employment Law Project, 22 states (including NY) hiked their minimum hourly wage on New Year’s Day, with six that reached or exceeded $15.00 per hour: 

AK  $11.73AZ  $14.35CA  $16.00CO  $14.42
CT  $15.69DE  $13.25HI  $14.00IL  $14.00
ME  $14.15MD  $15.00MI  $10.33MN  $8.85 sm./$10.85 lg.
MO  $12.30MT  $10.30NE  $12.00NJ*  $15.13
NY** $15.00/$16.00OH  $10.45RI  $14.00SD  $11.20
VT  $13.67WA $16.28
*NJ Seasonal, sm. empl. $13.73; Ag. workers $12.81; Long term care workers $18.13. 
** NY Home Care Aide minimum wage wage increased to $17.55/$18.55.     

The minimum hourly wage rate was also increased in 43 cities and counties in eight states: AZ (2), CA (28), CO (3), ME (2), MD (2), MN (2), NM (1), and WA (3) on January 1, 2024, with several others set to follow during the year. Of the 43 municipalities, 41 reached or exceeded $15.00 per hour, with 26 of the 41 reaching or exceeding $17.00 per hour. [Stop! You’re making my head hurt!]

We’re off to a busy start, with 2024 sure to be another active year for new and updated employment-related legislation, regulations, and even a Supreme Court decision or two. Through it all, my team and I will be here to assist you with all your HR and regulatory compliance needs.

Please email us at HRAnswers@hrcexperts.com for more information on the new minimum wage and salary threshold rates, or any other HR compliance-related topic. Remember, when you only have one chance to get it right, you need HR Compliance Experts. [Very punny. I’ll bet you came up with that.]

If you have questions about compliance with local, state, and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.

Did you enjoy Frankly Speaking? Then let us know at HRAnswers@hrcexperts.com! Also, feel free to share it with friends and colleagues. 

Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

By clicking submit, you agree to share your email address with the site owner and Mailchimp to receive marketing, updates, and other emails from the site owner. Use the unsubscribe link in those emails to opt out at any time.

Processing…
Success! You're on the list.

© 2024 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking: If you don’t like change, you’re probably not going to like this

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Nov 2023 new-i9

Are you someone who jumps at the chance to have the latest and greatest brand, model, or version of whatever interests you? Hint, the answer is yes if you just traded up from the iPhone 14 to the iPhone 15 Titanium. [Hey, don’t judge me!] For new Frankly Speaking readers, the commentary in [brackets] is channeled from my snarky alter ego. [You know I don’t like being called “snarky.”] 

Or are you a person who keeps using what you have as long as possible? Did you reluctantly buy a new cellphone only after receiving a notice that your old phone wouldn’t work on the upgraded network? Splurged on a reconditioned 43-inch LED Smart TV when your 15-year-old “dumb” TV couldn’t be repaired? And you’re still happily driving an SUV with 153,000 miles that you bought in 2014. [Your wife is still driving that thing?!] 

The long wait is over

Well, if you’re a fan of the familiar, I have some potentially irritating news. Beginning Wednesday, November 1, 2023, all employers must use the recently updated Form I-9 for employees hired on or after that date. [Wow, after that huge build up, all you got is a new I-9 form? Talk about anticlimactic.] 

The new Form I-9 – Employment Eligibility Verification form – was released by U.S. Citizenship and Immigration Services (“USCIS”) on August 1, 2023. This updated Form I-9 replaces the previous version, which, coincidentally, expired on October 31, 2022. In the interim, USCIS had instructed employers to continue using the expired form until the updated version was released and provided a three-month phase-in period through October 31, 2023. 

The most recent iteration of Form I-9 contains several noteworthy changes, including the following:

  • Sections 1 and 2 on One Page The most significant and recognizable change from several previous versions of Form I-9 is that Section 1 – Employee Information and Attestation – and Section 2 – Employer Review and Verification – are on a single page. USCIS contends that this so-called simplification will ensure a more efficient and user-friendly experience for employers. However, in reality, many of us with decades of experience assisting employers with Form I-9 compliance expect more confusion and a corresponding increase in errors. [We must be spending too much time together; I remember falling asleep reading your tantalizing article about how employers are charged enormous fines for Form I-9 errors. Something about I-9s and cannoli.] 
  • “Alien” Changed To “Noncitizen” USCIS no longer refers to individuals as “aliens,” instead referring to them as “noncitizens.” Additionally, Section 1 under Status 4, USCIS clarified that a noncitizen employee must provide a USCIS number, Form I-4 Admission number, or Foreign Passport number with the Country of Issuance. 
  • Preparer/Translator Certification To fit Sections 1 and 2 on a single page, USCIS removed the Preparer/Translator Certification acknowledgment checkboxes and moved the remaining fields to a separate page labeled Supplement A. Going forward when an employee completes Form I-9 with the assistance of one or more preparers and/or translators, each must complete and sign Supplement A, which the employer must retain with the employee’s Form I-9. Given that, in my experience, employees and employers often overlooked the Preparer/Translator fields when previously included in the main body of the form, moving these fields to a separate supplemental page will increase the likelihood that the information will not be provided when necessary. 
  • Employee Reverification and Rehire Previously labeled Section 3 – Reverification and Rehire – this information is now entered in Supplement B. Employers should use Supplement B to update Form I-9 when an employee is rehired within three years of the date the I-9 was initially completed; when a current employee provides proof of a legal name change (marriage, divorce, legal name change, etc.); or when a noncitizen employee is required to reverify their eligibility to work in the U.S. On the positive side, separating this section helps ensure employers will use the most current supplement when needed. However, it also appears likely that employers will forget to use Supplement B when required because it is no longer part of the Form I-9 document. 
  • “N/A” is N/A USCIS (finally) eliminated the requirement to write “N/A” in Section 1 fields that were otherwise unused, such as “Other Last Names Used” and “Apt. Number.” 
  • Updated Lists of Acceptable Documents The Lists of Acceptable Documents page was revised to include acceptable document receipts in addition to the actual documents that employees may present when completing Form I-9. USCIS also provides guidance and links to information on automatic extensions of employment authorization documentation. However, as with past versions, the Lists of Acceptable Documents does not include several documents that USCIS has otherwise determined to be acceptable. 
  • A Mobile-Friendly Form With the ubiquitous use of mobile devices, USCIS designed the revised Form I-9 to be fillable on tablets and other mobile devices. While this allows the document to be completed electronically, there are still regulatory limitations on the use of electronic signatures and the storage of electronic Form I-9 documents.
    • While the signature fields throughout the document do allow the user to type their name in the field, a typed name in these fields is not an acceptable electronic “signature.” To comply with federal regulations, Form I-9 must be printed and physically signed by the employee and employer’s representative.
    • Employers are generally required to maintain hardcopy Form I-9 files. Regardless of whether Form I-9 is completed electronically or on paper, a hardcopy of Form I-9 with original signatures must be filed and maintained by the employer, along with hardcopies of Supplements A or B. 
    • The only exceptions to the points above are for employers using a fully electronic Form I-9 system that complies with federal rules regarding electronic signatures and electronic data storage. 
  • Streamlined Instructions The Form I-9 instructions were reduced from 15 to 8 pages. Condensing the instructions was an attempt by USCIS to increase the likelihood of employers reading the instructions, thereby making it easier for employers to understand and comply with Form I-9 requirements. [Right…but does anyone really understand any of it!]

Form I-9 Q & A

Whenever I mention anything related to Form I-9 compliance, my team and I are guaranteed to receive dozens of questions. [Like, why are you so fascinated with I-9 forms?] Below are some of the most common questions we receive:

Q: I’ve never heard of an I-9 form. Is it something new, and what will happen if we don’t have one for every employee?

A: Employers have been required to complete and retain an Employment Eligibility Verification form – Form I-9 – for every individual hired on or after November 6, 1986. [I’ll bet you celebrate every year with a cake that says, “Happy Anniversary Form I-9!”] Under current rules, Section 1 of Form I-9 must be completed between the time the employee received a written job offer and no later than their first day of employment. Section 2 must be completed by the employer no later than the employee’s third day of employment. Employers who fail to follow these requirements are subject to penalties of up to $2,701 for every Form I-9 that is missing or completed incorrectly. These penalties may be enhanced up to 25% for “aggravating” factors, including business size (5%), employer’s bad faith (5%), seriousness of the errors (5%), presence of unauthorized workers (5%), and the employer’s negative history with the agency (5%).

Q: Can the employer complete Section 1 of Form I-9 for the employee?

A: No. The employee must complete, sign, and date Section 1 of Form I-9. If the employee requests the help of a preparer or a translator, the employer may provide the appropriate assistance and must complete Supplement B. 

Q: Our online employee onboarding program completes most of Section 1 of Form I-9 using information the employee entered as part of the job application process. Is this a potential issue?

A: Yes, and the employer will be responsible for this issue, not the vendor. Regardless of whether Form I-9 is completed electronically or by hand using a printed form, the information in Section 1 must be entered by the employee. If a preparer is used, they must ask the employee for the information and complete Section 1 in the employee’s presence. Under no circumstances can Section 1 be prepopulated.

Q: Now that the updated Form I-9 is required, do employers need to complete a new form for all employees?

A: No. Employers should not complete a new Form I-9 for current employees when the form is updated. Further, there could be consequences for doing so. Once completed, Form I-9 is retained the entire time the individual is employed and for a required period following the end of employment. 

Q: Is it true that employers are no longer required to complete the Form I-9 process, including looking at the employee’s documents, in person?

A: Maybe; it depends. Because it’s a somewhat complicated explanation, I’ll provide the details in an upcoming part two article. [Oh, the anticipation is already overwhelming.] For now, the short answer is that only “qualified employers” – those using E-Verify and in “good standing” with the program – are allowed to use the new Alternative I-9 Document Examination Procedure. All other employers must continue to complete the Form I-9 process – including physically examining the employee’s I-9 documentation – in person with the employee present. 

The bottom line

A recent study of 1.5 million hardcopy I-9 forms showed an employer error rate of 76%. Further, penalties for an error rate above are $2,701 for every Form I-9 completed incorrectly or missing. That means an employer with 25 I-9 forms with an error rate of 76% would face a minimum penalty of $51,319 (19 x $2,701). For an employer with 100 I-9 forms, a 76% error rate translates to an incredible $205,276 (76 x $2,701). If your company’s Form I-9 error rate is 76% what would your penalties be? With the potential for financially devastating situation only a random I-9 audit away, there’s no better time for us to review and help correct your I-9 forms. I promise it won’t cost anywhere near $2,701, or even $272, per form. Please email us at HRAnswers@hrcexperts.com for more information and to get started.

Please email us at HRAnswers@hrcexperts.com for more information on Form I-9 or any other HR compliance-related topic. Remember, when you only have one chance to get it right, you need HR Compliance Experts. [Very punny. I’ll bet you came up with that.]

If you have questions about compliance with local, state, and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Did you enjoy Frankly Speaking? Then let us know at HRAnswers@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

By clicking submit, you agree to share your email address with the site owner and Mailchimp to receive marketing, updates, and other emails from the site owner. Use the unsubscribe link in those emails to opt out at any time.

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© 2023 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking: What Do an I-9, the FLSA, and A Fresh Cannoli Have In Common?

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Cannoli

Happy Spring!

If you’re like me, picking just one favorite thing is sometimes challenging. [Not challenging at all, nothing is better than a fresh cannoli.] So, for new Frankly Speaking readers, the commentary in [brackets] is channeled from my snarky alter ego. [Snarky? That was uncalled for.] As I thought about what to write, it was difficult to decide which of my favorite topics to focus on, I-9 forms or the Fair Labor Standards Act (“FLSA”). [Wow, you should eat more cannoli.] Then, after sleeping on it, I decided to focus on both! [Oh, lucky us.]

I-9 Forms – Don’t skip this section!

Did I mention that I provided testimony on the I-9 form at a U.S. House of Representatives Committee hearing? OK, I admit, few people get as excited about I-9 forms as I do. [I’ve got $5 that says the number is precisely zero.] But once you learn about the potential for astronomical fines and penalties, you’ll appreciate my borderline I-9 obsession.

First, let’s start with the basics. The expiration date on the most recent I-9 form is 10/31/2022. That’s because U.S. Citizenship and Immigration Services (“USCIS”), the federal agency responsible for the I-9, has not released an updated form. [Shocking, a federal agency can’t get a form out on time; big deal!] While not seemingly important, it could become a significant and unbelievably expensive issue during a future I-9 audit. Call or email me if you want to know more. [How will you ever keep up with all the contacts?] According to the USCIS website, employers should continue to use the I-9 issued on 10/21/2019 (with a 10/30/2022 expiration date) until the new form is available.

Conversely, the Department of Homeland Security published its annual inflation adjustment (increase) to penalties for I-9 errors. Effective January 15, 2023, “civil money penalties” increased to a minimum of $272, up to $2,701 per form containing an error. Fines are assessed based on the percentage of the employer’s forms containing one or more errors. For example, Snarky, Inc. [I know you’re referring to me] has 200 I-9 forms subject to audit. Error-related civil money penalties would be calculated based on the following (estimated based on previous civil money penalty schedules):

  • 1% to 9% – $272 per form
  • 10% to 19% – $676 per form
  • 20% to 29% – $1,270 per form
  • 30% to 39% – $1,747 per form
  • 40% to 49% – $2,225 per form
  • 50% to 100% – $2,701 per form

Here’s the bad news; most employers don’t know whether their I-9 forms are completed correctly. The double dog worse news is that national estimates of employer I-9 error rates are approximately 75% to 85%. However, my decades of experience reviewing I-9 forms have consistently shown error rates of more than 95%. The triple dog worse news is that the civil money penalties can be catastrophic. Using the Snarky Inc. I-9 forms and the range of error rates above as an example – all of which would be charged at the maximum of $2,701 – the penalties for forms containing as little as one error are as follows:

  • 75% error rate (150 forms x $2,701) = $405,150
  • 85% error rate (170 forms x $2,701) = $459,170
  • 95% error rate (190 forms x $2,701) = $513,190

Now, the quadruple dog worse news, [as if a half-million dollars in fines isn’t the worst thing…and STOP with the double, triple, quadruple dog thing!] these penalties can be “enhanced” up to 25%. Enhancements for “aggravating” factors include the business size (5%), bad faith (5%), seriousness of the errors (5%), presence of unauthorized workers (5%), and the employer’s negative history with the agency (5%). However, in the name of full and fair disclosure, the agent in charge may also reduce the penalty amount using the same factors. These so-called “mitigating” factors are also calculated in five percent (5%) increments.

With the potential for financially devastating penalties only a random I-9 audit away, there’s no better time for us to review and help correct your I-9 forms. I promise it won’t cost anywhere near $2,701 – or even $272 – per form! Please email us at hranswers@hrcexperts.com for more information or to get started.

Fair Labor Standards Act – Overtime Rules

In May, the federal Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) is expected to release a long-awaited Notice of Proposed Rulemaking (“NPRM”) related to federal overtime regulations. The NPRM will (finally) provide official public notice of the WHD’s proposed increase to the FLSA’s minimum salary threshold for the white-collar – executive, administrative, and professional – exemptions.

The Biden administration has made clear that it believes the current salary threshold – set during the Trump administration at $684/week ($35,568 annualized) – is too low. Similarly, in a December 2021 letter to the Secretary of Labor, more than 100 worker advocacy groups called for more people to be eligible for overtime. According to the letter, these groups want a threshold “substantially higher than” the $913/week ($47,476 annualized) “proposed during the Obama administration.” Long-time readers may remember that a federal judge blocked the implementation of the higher threshold, declaring the rule unlawful.

Although the details are still unknown, experts have opined what they expect when the NPRM is finally issued. Many expect the WHD to propose increasing the weekly salary threshold to somewhere between $900 to $1,000 ($46,800 to $52,000 annualized). There is also talk of the WHD proposing additional changes to the overtime rules, including revisions to the “duties tests,” the addition of automatic increases to the salary threshold, and a boost to the minimum salary for the “highly compensated employee” exemption.

My educated guess is that a threshold increase beyond about $769/week ($40,000 annualized) will likely cause business groups, like the U.S. Chamber of Commerce, to challenge the move in federal court.

Fair Labor Standards Act – Overtime Rules, Part Two

The DOL isn’t alone in its attempt to modify the FLSA overtime rules. For example, Senator Sherrod Brown (D-OH) recently reintroduced the Restoring Overtime Pay Act. This bill, co-sponsored by Senators Chuck Schumer (D-NY), Bernie Sanders (I-VT), and more than a dozen others, and its companion in the House of Representatives (“House”), calls for increases to the FLSA’s minimum salary threshold (annualized) as follows:

  • $45,000 – on the effective date of the Act;
  • $55,000 – January 1, 2024;
  • $65,000 – January 1, 2025;
  • $75,000 – January 1, 2026; and
  • Annual increases based on market data.

In addition, the Congressional Progressive Caucus (“CPC”) is preparing to present an executive action agenda to President Biden, which includes increasing overtime eligibility for workers. This follows a letter the CPC sent to the Labor Secretary last summer, calling for an increase to the annualized salary threshold from the current $35,568 to $82,732. [Wait, what? That’s a 233% increase!] While, as discussed above, the DOL is expected to publish its NPRM next month, I don’t see any possibility of it following the CPC’s recommendation of an almost 233% increase to a salary threshold of $82,732.

But Wait, There’s More!

After co-sponsoring the House’s version of the Restoring Overtime Pay Act, Congressman Mark Takano (D-CA) recently reintroduced the Thirty-Two-Hour Workweek Act. [Great! I could work less and get paid more!] This bill would make significant amendments to the FLSA:

  1. Change the statutory definition of a workweek from 40 hours to 32 hours. As a result, employers would be required to pay overtime to nonexempt employees for all time worked over 32 hours in a workweek. [Wait, are you serious? Where do I sign up?!]
  2. Add an overtime pay requirement when nonexempt employees work more than eight hours in a workday. Four states – Alaska, Colorado, Nevada, and Rep. Takano’s home state of CA – currently have daily overtime requirements. The bill’s authors appear to have based this section on the most generous of the four, CA. According to the bill, an employer must pay employees daily overtime as follows:

a. One-and-one-half (1½) times the employee’s regular hourly rate of pay for all time worked in excess of eight (8) hours in a workday; and

b. Two (2) times the employee’s regular hourly rate of pay for all time worked in excess of twelve (12) hours in a workday.

The Thirty-Two-Hour Workweek Act likely has little chance of passage during the 118th Congress. However, employers – especially small business employers – should hear the message loud and clear; there is a formidable progressive movement to fundamentally change the FLSA and drastically increase the number of employees eligible for overtime.

There are also like-minded efforts at the state level. In NY – outside NY City, Long Island, and Westchester County – the 2023 minimum salary for the executive and administrative exemptions increased to $1,064.25/week ($55,341 annualized). The minimum salary in the greater NY City area remained $1,125/week ($58,500 annualized). The salary threshold in CA is $5,373.33/month ($64,480 annualized). Maine’s minimum salary is $796.17/week ($41,401 annualized), with Colorado’s salary threshold at $961.54 ($50,000 annualized). Finally, WA State is the winner at $1,259.20/week ($65,478.40 annualized) for “large” employers. However, it is worth noting that the state’s “small” business salary threshold is a mere $1,101.80 (57,293.60 annualized).

Maybe I’m getting old [Maybe…getting? No, you’re definitely already old.], but doesn’t it seem that compliance with the myriad of local, state, and federal employment laws has never been more challenging? That’s why my team and I spend the untold hours necessary to keep up with new and changing employment laws and regulations at every level.

Please email us at hranswers@hrcexperts.com for more information on I-9s, questions about salary thresholds and overtime exemptions, or any other HR compliance-related topic. Remember, when you only have one chance to get it right, you need HR Compliance Experts. [Very punny. I’ll bet you made that one up.]

If you have questions about compliance with local, state, and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Did you enjoy Frankly Speaking? Then let us know at HRAnswers@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

By clicking submit, you agree to share your email address with the site owner and Mailchimp to receive marketing, updates, and other emails from the site owner. Use the unsubscribe link in those emails to opt out at any time.

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© 2023 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking: A Few “Gifts” Not On Your Wish List

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Santas sack of gifts_sm

Hello, and Happy Holidays!

I can’t believe it’s been such a long time since we’ve connected! [Barf! That sounds like one of those mind-numbing “let me brag about how awesome our year has been” letters people you never talk to send with their holiday cards.] For those readers new to Frankly Speaking, the commentary in [brackets] is channeled from my snarky alter ego. [Snarky? That’s rude.] Anyway, this is my end-of-year update on some significant changes to employment laws and regulations for 2023. [Like I said, mind-numbing. Wake me when it’s over.]

Minimum Wage

Several states’ minimum wage and minimum salary rates are increasing in 2023.

In October 2022, the NY State Division of the Budget [Who makes up these names?!] issued a report recommending that certain minimum wage rates for employees in Upstate NY – areas outside NY City, Long Island, and Westchester County – be increased, as described below. Gov. Hochul accepted the recommendation on December 21, 2022, [Seriously? Why not wait until December 30th so employers have less time to change their payrolls!] so employers in the Upstate region must prepare to pay the increased minimum hourly wage and minimum salary rates beginning December 31, 2022.

The proposed Upstate minimum hourly wage rate is set at $14.20 per hour, with the minimum salary increasing to $1,064.25 per week ($55,341.00 annualized). However, employers in NY City, Long Island, and Westchester County will not see a change to the current $15.00 per hour minimum wage or the minimum salary of $1,125.00 per week ($58,500.00 annualized).  

Similarly, the proposed Upstate minimum hourly rate in the hospitality industry for food service workers – employees primarily engaged in serving food or beverages and regularly receive tips, including wait staff, bartenders, captains, and bussers (not including delivery workers) – will increase to $9.45 cash and $4.75 tip. Food service workers in NY City, Long Island, and Westchester County will not see a change to the current hourly minimum rates of $10.00 cash and $5.00 tip. Further, the proposed Upstate minimum hourly rate for service workers – employees who are not food service or fast-food workers but who customarily receive tips – is set to increase to $11.85 cash and $2.35 tip. Also, service workers in NY City, Long Island, and Westchester County will not see a change to the current hourly minimum rates of $12.50 cash and $2.50 tip. Lastly, the minimum wage rate for employees of covered fast-food restaurants will remain at $15.00 per hour. [Do you really think anyone understood any of that?] 

In addition to NY State, more than 20 other states plan to increase their minimum hourly wage rates on January 1, 2023 (except as noted): Alaska $10.85; Arizona $13.85; California $15.50; Colorado $13.65 (June 1, 2023); Connecticut $15.00 (June 1, 2023); Delaware $11.75; Florida $12.00 (September 30, 2023); Illinois $13.00; Maine $13.80; Maryland $13.25; Massachusetts $15.00; Michigan $10.10; Minnesota $10.59; Missouri, $12.00; Montana $9.95; Nebraska $10.50; Nevada $12.00 (July 1, 2023); New Jersey $14.13; New Mexico $12.00; Ohio $10.10; Rhode Island $13.00; South Dakota $10.80; Vermont $13.18; Virginia $12.00;  Washington (state) $15.74. Also, several states, such as California and Maine, allow local governments to set minimum hourly wage rates which exceed the state’s threshold.

Employment Law Poster Requirements

Effective December 16, 2022, all NY employers must provide their employees with electronic access to all required NY State and federal workplace employment law postings. Signed into law by Gov. Hochul last week, A7595/S6805 requires the electronic posters to be available to employees through the employer’s website or by email. In addition to maintain the required workplace postings, employers must notify all employees that the required posters are also available electronically. [Are you making this up? You always seem to be the only person who knows about this stuff.]  

The law does not consider that, while many businesses have websites, and many employees have email addresses, that is not the case for all businesses or all employees. Further, the law does not provide any direction for employers without a website on how to make the electronic posters available. Neither does it suggest how to provide the mandated notice to employees that do not have, or refuse to provide, an email address. [Why would they? It’s not the state’s problem to solve.] However, the law does indicate that employers who fail to comply with this mandate may be subject to fines.

Most states, and the federal government, have made recent updates to their required workplace posters. So, regardless of whether you have employees in NY State, it’s important that you meet both state and federal posting requirements. My team is contacting HRCE clients to remind them that 2023 state and federal all-in-one posters – both printed and electronic – are now available. Also, current and future clients can contact us at HRAnswers@hrcexperts.com, or 585-565-3900, with any questions or to place an order. [Tell them the snarky alter-ego sent you!]

State Paid Family Leave

Effective January 1, 2023, [There’s more? Is this ever going to end?] the following changes will take effect to NY State Paid Family Leave (“PFL”):

  • Eligible employees will now be permitted to take PFL leave to care for siblings (including biological, adopted, step-, and half-siblings) with serious health conditions.
  • Eligible employees will continue to receive 67% of their average weekly wage, up to a cap of 67% of the 2023 Statewide Average Weekly Wage (“AWW”). For 2023 the AWW increased to $1,688.19, resulting in a maximum weekly benefit increase of $62.72, to $1,131.08.
  • Employee contributions in 2023 are set at 0.455% of the employee’s gross wages per pay period, up to a maximum annual contribution of $399.43 (a decrease of $24.28 from 2022).

Employers with employees in CA, CO, CT, DC, DE, MA, MD, NJ, OR, RI, or WA may also have to comply with paid family leave law obligations. Contact the HR Compliance Experts team if you have questions about whether your employees are covered by a state’s paid family leave laws.

Expressing Breast Milk in the Workplace

On December 9, 2022, NY Gov. Hochul signed a bill that amends NY State Labor Law, Section 206-c. [Her pen has been working overtime this month!] Although not effective until June 7, 2023, [Don’t you want to save something for another article?] this amendment requires employers to provide reasonable unpaid break time or allow for the use of paid break or mealtime each time an employee has a reasonable need to express breast milk. This obligation continues for up to three (3) years following childbirth. Employers are also obligated to provide a designated location for expressing breast milk. The designated location:

  • Must contain a chair, a working surface, lighting, and an electrical outlet;
  • Must be in close proximity to the employee’s work area, near clean running water, shielded from view, and free from intrusion by other people;
  • Cannot be in a restroom or toilet stall.

Although the designated location is not required to be used solely for expressing breast milk, the location must be available whenever an employee needs to express breast milk. Further, the employer must notify all employees that the designated location cannot be used for any other purpose while it is occupied by an employee expressing breast milk.

Lastly, [do you promise?] if refrigeration is available in the workplace, employers must allow employees to refrigerate expressed breast milk.

Federal labor law also provides nursing mothers with some minimal rights to express breast milk in the workplace. However, like NY, 29 additional states (AR, CA, CO, CT, GA, HI, IL, IN, KY, LA, ME, MD, MA, MN, MT, NE, NJ, NM, ND, OK, OR, RI, SC, TN, TX, UT, VT, VA, AND WA) and the District of Columbia have laws regarding the expression of breast milk in the workplace. Feel free to contact the HR Compliance Experts team if you have questions about this topic.  

On behalf of Amanda, Irene, and Chrissy [and me!], I wish everyone a safe and wonderful holiday season and a very Happy New Year!

If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at HRAnswers@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

By clicking submit, you agree to share your email address with the site owner and Mailchimp to receive marketing, updates, and other emails from the site owner. Use the unsubscribe link in those emails to opt out at any time.

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© 2022 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Frankly Speaking: We’ve got so much to catch up on!

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“It feels like forever since we’ve had a chance to catch up!” How many of us have said something similar repeatedly in the last few weeks and months? So many of the disconnects stem from “two weeks to flatten the curve” expanding beyond anyone’s expectations (are you talking about COVID or your waistline?). My sense of time passage is so distorted that I regularly find myself asking, “has it really been more than two years since…?”   

There’s been no disconnect in the pipeline of new and revised employment laws and regulations (I see what you did there). Here are a few of the highlights (don’t you mean lowlights?) employers need to know about:

Employee Notice of Employer Electronic Monitoring

Please don’t skip over this one because you don’t think it applies to your business! Essentially all software and business services provided for employee use – including phones, email, and Internet access – allow employers to monitor or otherwise intercept electronic communications,  transmissions, or internet access or usage. So, if you provide anything more than pencils to your employees, this applies to your business.

This amendment to the NY State Civil Rights Laws mandates that private employers in the state notify employees that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system including, but not limited to, the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.” (Who writes this stuff?!)

What does that mean for employers? As NY State employer mandates go, this one isn’t too bad (is that supposed to be comforting?). Here’s what employers must do by May 7, 2022, the statute’s effective date:

  • Provide all employees with a written notice containing the italicized language above;
  • Require all employees to sign and return a written acknowledgment form – many legal experts are strongly suggesting the acknowledgment form also include the statute’s language;
  • Post a copy of the same written notice in a conspicuous workplace location – preferably with other required employment posters – and/or on the company intranet where it is accessible to all employees;
  • Update the company’s electronic monitoring and IT policies contained in the employee handbook; and
  • Revise new employee onboarding processes to provide the written electronic monitoring notice and receive a signed acknowledgment before a new employee is subject to any electronic monitoring.    

Employers should also note four additional points: (i) the law appears to require notification to all employees, regardless of whether they are physically located in NY State, (ii) this is an annual notice and acknowledgment requirement (I wouldn’t expect anything less), (iii) each failure to properly notify an individual employee is a separate violation, and (iv) penalties of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

Amendments to the NY Paid Family Leave Law

As most employers are aware, under the NY Paid Family Leave Law (“PFLL”), eligible employees are allowed up to 12 weeks of paid family leave over a 52-week period. Until recently, when an employee used PLF leave intermittently, the maximum amount of leave was capped at 60 days. This cap assumed the employee worked, at most, a five-day workweek, i.e., five days per week for 12 weeks equals 60 days of leave. However, the NY State Workers’ Compensation Board amended the PFL regulations to eliminate the 60-day cap.

Effective January 1, 2022, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week during the measurement period. For example, an employee working an average of six days per week is now entitled to 72 days of intermittent leave – and an average of seven days per week equals 84 days of intermittent leave – over a 52-week period. Also, this amendment is applied prospectively for claims filed on or after the effective date.

While we’re on the topic of PFL, effective January 1, 2023, the current list of covered family members – the employee’s spouse, domestic partner, children, stepchildren, parents, stepparents, parents-in-law, grandparents, and grandchildren – will expand to include the employee’s biological, adopted, step-, and half-siblings.

Updates to the NY State Human Rights Law Regarding Workplace Sexual Harassment

The significant number of sexual harassment complaints raised against Andrew Cuomo once again put the spotlight on how employers handle allegations of inappropriate workplace behaviors. Effective March 16, 2022, an amendment to the NY State Human Rights Law (“HRL”) modified the definition of “unlawful retaliation” to include “disclosing an employee’s personnel files because he or she has opposed any practices forbidden under [the HRL] or because he or she has filed a complaint, testified, or assisted in any proceeding.” However, the amendment still allows employers to disclose personnel information “where such release is necessary to respond to a complaint, civil or criminal action, or judicial or administrative proceeding.”

Another amendment to the State’s HRL requires the NY State Division of Human Rights (“DHR”) to establish a confidential sexual harassment complaint hotline. Expected to be operational by July 14, 2022, the hotline will be staffed by “attorneys experienced in providing counsel related to sexual harassment matters who can provide pro bono assistance and counsel to individuals [who] contact the hotline.” Although the DHR is yet to issue compliance guidance, the amendment does require employers to post information about the hotline in the workplace (they can’t post what they don’t have!).  

NY State Mandates Retirement Savings Plans for All Employees

In an effort to “promote greater retirement savings for private-sector employees in a convenient, automatic, low-cost, and portable manner,” NY State has enacted legislation establishing the Secure Choice Savings Program (“Secure Choice IRA”). The legislation also requires “certain private-sector employers” to automatically enroll employees 18 years of age and older in the Secure Choice IRA program and deposit the employee’s after-tax contributions into a Roth individual retirement account.

For purposes of the Secure Choice IRA program, the state defines “certain private-sector employers” as any “person or entity engaged in a business, industry, profession, trade, or other enterprise in New York State” – including not-for-profit organizations – that has:

  • At all times during the prior calendar year [without interruption], employed at least 10 employees in the state;
  • Been in business for at least two years; and
  • Not offered a qualified retirement plan, including, but not limited to, a plan qualified under sections 401(a), 401(k), 403(a), 403(b), 408(k), 408(p), or 457(b) of the Internal Revenue Code of 1986, in the preceding two years.

Although the law requires their automatic enrollment in the Secure Choice IRA program, employees have the right to:

  • Participate in the Secure Choice IRA program and select the contribution level, expressed as a percentage of wages or as a dollar amount up to the applicable annual limit;
  • Change their contribution level at any time, subject to rules established by the state’s Secure Choice Savings Board (“Board”);
  • Take their IRA with them if and when they change jobs; and
  • Affirmatively elect to opt-out of the Secure Choice IRA program using the appropriate opt-out form.

Where an employee fails to select a contribution level, or affirmatively opt-out of participation, the employer is required to automatically enroll the employee at the three percent default contribution rate.

No employer contributions are made to Secure Choice IRAs. Also, employers are prohibited from terminating an existing qualified plan to participate in the Secure Choice IRA program.

Lastly (a sweeter word has never been written), there is no need for employers to take any immediate action (you couldn’t have started with that little tidbit?). The state’s Secure Choice Savings Board, which is responsible for administration and operation, has up to two years to implement the program. Then, once the Board opens the program, employers will have nine months to begin enrolling employees and comply with the program’s requirements. Although no firm date has been set, the Board held its first meeting in late January, and many experts believe the program will be up and running no later than December 31, 2022.

If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email theexperts@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2022 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

HRCE Compliance Update: NYS HERO Act Designation EXPIRED March 17, 2022

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NYS Map - Crest sm

The New York State Commissioner of Health, Dr. Mary Bassett, announced the following in a press release last week:
 
“On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended. Private sector employers are no longer required to implement their workforce safety plans.”
 
With COVID-19 infection and hospitalization rates decreasing and the HERO Act mask mandate and other preventative measures lifted last month in New York, the Health Commissioner has now allowed the designation to expire.
 
Therefore, employers are no longer required to implement their Disease Exposure Prevention Plan under the HERO Act, including daily health screenings and other requirements. However, employers must continue to maintain their safety plans, including as part of their employee handbooks, in the event of a later designation.
 
If you’re confused by an ever-increasing number of state and federal rules and regulations, you’re not alone. Fortunately, the HR Compliance Experts team is up-to-date and here to help! If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
 
Was this HRCE Compliance Update helpful? Then let us know at HRAnswers@hrcexperts.com  Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.
 
Posted by members of the HR Compliance Experts team.

© 2022 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about HR Compliance Experts LLC.

HRCE Compliance Update: NYS HERO Act Extended Again & Info on COVID Paid Sick Leave

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Mary Bassett w Gov Hochul

The New York State Commissioner of Health, Dr. Mary Bassett, once again extended the designation of COVID-19 as highly contagious, which requires employers’ HERO Act Disease Exposure Prevention Plans to remain activated through at least March 17, 2022. 

The Commissioner’s fifth consecutive extension of the COVID designation comes when the number of new COVID cases in NYS has dropped precipitously over the past several weeks. From a seven-day average high of just over 74,000 in early January to 4,744 on February 14. However, even with the significant drop in cases, the Commissioner’s continued designation of COVID-19 as highly contagious and a serious risk to public health was not unexpected. That’s because the decision is based, at least in large part, on the CDC continuing to identify the level of COVID transmission in all but one NY county as “high.”  

Exposure Prevention Plans Remain in Effect, But Unmasked!

Employers in NYS must continue enforcing their company’s Disease Exposure Prevention Plan under the HERO Act. This plan includes conducting daily health screenings for employees entering the workplace, among other requirements. However, EFFECTIVE FEBRUARY 10, 2022, employers’ plans are not required to include a mandate that all employees wear face coverings or masks. As explained in a recent Frankly Speaking, the NYS Department of Labor (“DOL”) updated its HERO Act model plan language to reflect the elimination of the state’s broader mask mandate applicable to all indoor public spaces. 

Updates to NYS COVID-Specific Paid Sick Leave

Sometimes, change leads right back to where you started, just more confused. This is certainly true of the NYS COVID-specific paid sick leave requirements. 

It’s not news to anyone that employers are required to provide COVID-specific paid sick leave benefits to employees under an order of quarantine or isolation. The number of paid leave days is generally based on headcount, with up to five days for smaller employers and up to 14 days for employers with 100 or more employees. What shouldn’t be, but often is, news to employers is that they are required to provide COVID-specific paid sick leave benefits to employees up to THREE TIMES. Well, at least that was the rule until February 2, 2022, when the DOL eliminated its previously issued guidance on the subject. With that change, there was no limit to the number of times an employer would be required to provide COVID-specific paid sick leave benefits to employees. 

Fortunately, the DOL has updated its FAQs to state once again that employees are eligible for COVID-specific paid sick leave benefits a maximum of three times. In addition, employers should be aware that: 

  • To qualify for COVID-specific paid sick leave benefits, an employee must be under an order of quarantine or isolation. 
  • The second and third orders of quarantine or isolation must be based on the employee testing positive for COVID-19. 
  • Also, an employee under a second or third order of quarantine or isolation must submit documentation to their employer from a licensed medical provider or testing facility attesting that the employee has tested positive for COVID-19, unless the employer administered the test. Therefore, employers are not required to accept the unverified results of an at-home COVID-19 self-test.
  • Employers must accept a properly completed “Affirmation of Quarantine” or “Affirmation of Isolation” as a valid order of quarantine or isolation. 
  • If an employee, not otherwise subject to an order of quarantine or isolation, is not allowed by their employer to work due to actual or potential exposure to COVID-19, the employer must continue to pay the employee their regular wages until either: 1) the employer permits the employee to return to work, or 2) the employee becomes subject to an order of quarantine or isolation. Once subject to an order of quarantine or isolation, the employee is then eligible for COVID-specific paid sick leave, or other COVID-specific paid leave benefits as required by law.
If you’re even more confused that ever, you’re not alone. Fortunately, the HR Compliance Experts team is up-to-date on the latest rules and we’re here to help you. If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email HRAnswers@hrcexperts.com.
Was this HRCE Compliance Update helpful? Then let us know at HRAnswers@hrcexperts.com  Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at HRAnswers@hrcexperts.com, or call 585-565-3900.
 
Posted by members of the HR Compliance Experts team.

© 2022 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about HR Compliance Experts LLC.

Frankly Speaking: Did NY Gov. Hochul end workplace mask requirements for most employees, or NOT?

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Before you send me the angry email you’re composing in your head, let me explain (oh, go ahead, send him an angry email just for fun!).
 
As you already know, under one of NY Gov. Hochul’s previous orders, face coverings (just call them masks, face coverings sounds creepy) were required to be worn by employees, customers, and visitors in all indoor public places – including offices – unless proof of vaccination was required for entry. Then, yesterday Gov. Hochul announced the order would expire today, February 10, 2022. So now, most businesses, with certain exceptions, will no longer need to ensure that customers and visitors are masked. 
 
Many employers and employees celebrated the announcement (I have a feeling you’re going to ruin it for them), but something about the announcement bothered me. Then, it hit me (I hope it hurt!). The so-called “indoor mask mandate” that was about to expire and the NY HERO Act – which requires all employees to wear masks in the workplace – are two separate things! Why does that matter (you took the question right out of my head)? Because the HERO Act requirements are in effect until at least February 15, 2022.
 
On September 6, 2021, the NY commissioner of health designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” That action triggered the HERO Act required all employers to implement their Airborne Infectious Disease Exposure Prevention Plans (you just triggered a cramp in my brain). Among the Act’s requirements was that every employer mandate all employees wear masks in the workplace – regardless of individual vaccination status – unless everyone on-site, not just employees, was fully vaccinated. Furthermore, unless addressed beforehand, employees would be required to continue wearing masks until at least February 15, 2022! 
 
Now, the Good News! NY updated the language in its HERO Act model plan as follows: 
  • EFFECTIVE FEBRUARY 10, 2022 Employees will wear appropriate face coverings in accordance with guidance from the State Department of Health or the Centers for Disease Control and Prevention, as applicable. Consistent with the guidance from the State Department of Health, if indoor areas do not have a mask or vaccine requirement as a condition of entry, appropriate face coverings are recommended but not required. It is also recommended that face coverings be worn by unvaccinated individuals, including those with medical exemptions, in accordance with federal CDC guidance. Further, the State’s masking requirements continue to be in effect for pre-K to grade 12 schools, public transit, homeless shelters, domestic violence shelters, correctional facilities, nursing homes, health care, child care, group homes, and other sensitive settings in accordance with CDC guidelines. New York State and the State Department of Health continue to strongly recommend face coverings in all public indoor settings as an added layer of protection, even when not required.
Employers should note that the acting commissioner of health may extend COVID’s designation as a highly contagious communicable disease beyond February 15, 2022. And, yes, that means employers may be required to keep their Airborne Infectious Disease Exposure Prevention Plans in effect. But, with this change in the model policy language, most employers now have the option of whether to require employees to wear masks at work.  
If you have questions about compliance with state and federal regulations and mandates, or want information on any of the services HR Compliance Experts offers, call us at 585-565-3900 or email theexperts@hrcexperts.com.
Did you enjoyed Frankly Speaking? Then let us know at theexperts@hrcexperts.com! Also, feel free to share it with friends and colleagues. 
 
Employment-related questions or issues? Does your employee handbook need to be updated? Contact us at theexperts@hrcexperts.com, or call 585-565-3900.

Posted by Frank Cania, president of HR Compliance Experts LLC.

© 2022 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.