Forms Title Goes Here Forms! Presented By: Heidi Doescher and Stephen Parker
Overview n n Forms Background Checks and Credit Report Social Media Update Pre-Employment Inquiries
Forms – the Standbys
Forms – the Standbys n n W-4 Direct Deposit form with voided check Personal Information Emergency Contact
Forms You Might Want To Include n Acknowledgements l l l n At-will employment Discrimination and Harassment Reporting Mechanisms Receipt of Employee Handbook Job Description l l ADA FLSA
Purpose of the I-9 Form n The purpose of the I-9 Form is to verify an employee’s: l l n n Identity Authorization to work in the United States All new employees hired on/after November 6, 1986 must complete a Form I-9. Federal law provides for civil and criminal penalties for failure to comply with Form I-9 requirements
Section 1: Employee Information and Verification n Section 1 of the I-9 form is to be completed on the first day of work. Earlier is acceptable, but the form cannot be completed before the employee has been hired. Provide employee with Form I-9 (including instructions). Ask him/her to complete Section 1 and bring an acceptable combination of documents to you no later than their third work day. Let the employee choose the documents! Never request specific documents. l The Office of Special Counsel for Immigration-Related Unfair Employment Practices enforces the anti-discrimination provision of the Immigration and Nationality Act § 274 B, 8 U. S. C. § 1324 b. This statute prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual's national origin or citizenship status. The statute also prohibits discrimination during the employment eligibility verification (Form I-9 and E-Verify) process (document abuse), and retaliation or intimidation
Section 1: Employee Information and Verification n Check that the employee has completed all fields: Name: The employee must use his/her legal name in correct order. l Address, Date of Birth, Social Security Number. l Citizenship Attestation n A Lawful Permanent Resident must provide an 8 - or 9 digit Alien Number. n An Alien Authorized to Work must provide the date work authorization expires and an Alien number or an 11 -digit Admission number from the Form I-94. l Sign and Date: The form is not valid without a signature. Preparer and/or Translator Certification: If someone other than the employee completed Section 1. l n
Section 2: Employer Review and Verification n To be completed no later than the employee’s third workday by an authorized representative of the employer. l Valid documentation is one of the following: One document from List A, or one from List B and one from List C l Be sure the employee has signed the documents. l Make a readable copy of each document presented.
Section 2: Can I accept this document? n n Must be original, not faxed/photocopied Signed Unexpired “Reasonably appears, upon reasonable inspection of its features and the information it contains, to be genuine and to relate to the employee. ” -- DHS Guidance.
Section 2: Employer Review and Verification n Record each Document title, Issuing authority, Document number, and Expiration date (if applicable). Use the correct lines according to the key at the far left of the page. Use the correct column for List A, B, or C. Enter the employment start date (month/day/year). Certification l Only the person who viewed the original documents can complete this section. l Signature, Printed Name, Title l Name and Address of the employer.
Section 3: Updating and Reverification n Only use this section when the employee’s work authorization has changed or has a new expiration date. For example when there is an extension of an Employment Authorization Card Never re-verify a U. S. Citizen or Lawful Permanent Residence.
Retention of I-9 Form Retain I-9 for: l Three years from the date of hire; OR l One year from the date of termination, l Whichever of the two dates is later All current employees should have I-9 s on file
Best Employment Practices (Outlined by ICE): n http: //www. ice. gov/image/best-practice. htm l l l Use E-Verify for all new hires. Use the Social Security Number Verification Service (SSNVS) for wage reporting. Establish a written I-9 Compliance Policy. Establish an internal compliance and training programs. Allow only trained personnel to complete I-9 process, along with secondary review. Perform annual internal I-9 audits.
Best Employment Practices (cont’d) l l l Ensure contractors establish procedures to comply with law. Establish a protocol for responding to government agencies that raise possible problems (e. g. , SSA No-Match Letters, Returned W-2 forms, Payroll Companies, etc. ) Establish tip line and response mechanism (inbox, email, etc. ) to report activity relating to illegal workers. Implement policies to protect against discrimination or document abuse. Maintain clear copies of verification documents.
A New I-9 Form? ? n USCIS has proposed a new I-9 form l l l Doubles the length of the form from one to two pages so with instructions, totals nine(!) pages. Includes optional employee Phone Number and Email address fields It has been proposed by CBP that the I-94 will become automated and paperless. n n It is unclear how the employer will complete the I-9 form when the I-94 becomes paperless Hopefully revision and clarification will come soon.
Electronic I-9? n n On August 23, 2010, regulations were amended to allow employers to complete and store electronically generated I-9 Forms. Requires a software product and internal business practices and protocols related to the generation of, use of, storage of, security of, and inspection and quality assurance programs
I-9 Form Resources n Handbook for Employers provides USCIS guidance on I-9 form completion. l http: //www. uscis. gov/files/form/m-274. pdf n The statute, INA § 274 A, and the regulations at 8 CFR § 274 a are the controlling authority over the I-9 process n Questions / Discussion?
Colorado Affirmation Form – UPDATED September 6, 2012 n n Part of the Colorado Employment Verification Law, C. R. S. 8 -2 -122 Applies to all public and private employers in Colorado In ADDITION to the I-9 Requirements (to be completed by the employer within 20 days of hiring): l l n Completion of the Affirmation Form Make and retain copies of employee identity and employment eligibility documentation Must retain for entire duration of employment
Colorado Affirmation Form What exactly is the employer affirming? n Employer has examined the legal work status of the new employee n Employer has retained file copies of the I-9 identify verification forms n Employer has not altered or falsified these documents n Employer has not knowingly hired an illegal alien
Colorado Affirmation Form
Forms to Prevent Deadbeat Parents n n Under federal law, employers are required to report new hires to Colorado’s State Directory of New Hires - https: //newhire. state. co. us/newhire/do/ National directory of new hires that is used to locate parents with child support obligations 20 calendar days after hire or by next regularly scheduled payday If reporting electronically, employer must report twice per month
Forms to Prevent Deadbeat Parents n Required information: l l n Employee’s name, address, SSN, date of hire (first day services performed), birthdate (optional) Employer’s name, payroll address, FEIN How to report l l l Online through website Fax or mail W-4 or multi-state form “Diskette, Magnetic Media or Cartridge”
Forms to Prevent Deadbeat Parents n Options for multi-state employers: l l Provide form to state where new employee works, OR Designate one state and transmit ALL new hire reports to that state n Requires notification to Department of Health and Human Services
Forms to Prevent Deadbeat Parents
To Screen or Not to Screen n Pros l Save time and money by making sure that new employees: n n n l Are qualified Have good work habits Are not likely to cause conflicts or injuries Goal is to minimize employer liability
To Screen or Not to Screen n BUT – some types of inquiries are considered unlawful l l Too intrusive May have negative impact on people with protected characteristics
To Screen or Not to Screen n Laws that may be implicated during hiring process: l l l Title VII – race, color, religion, sex, national origin ADEA – age ADA – disability CADA – disability, race, creed, color, sexual orientation, religion, age, national origin, or ancestry Colorado statutes – marriage to another employee (for employers w/ more than 25 employees)
To Screen or Not to Screen n n Offer first, verify later!!! If you need to do a credit check, verification of a driving record, or other type of screening that may have a disparate impact on people with protected characteristics, it is better to make a conditional offer of employment rather than withholding any offer until verification is completed.
Background Checks n In Colorado, employers may not require applicants to pay for the cost of: l l n Background checks Medical examinations Never ask for photos prior to hiring
Fair Credit Reporting Act n n n Federal law that applies to reports prepared by a third party that regularly assembles or evaluates information bearing on an individual’s credit, character, and reputation Covers consumer reports such as credit reports, criminal background reports, driving records, and investigative consumer reports Can cover social media checks if they are done through a vendor (Social Intelligence Corporation)
Fair Credit Reporting Act n Does the FCRA apply to me? l Only applies to third party reports from consumer reporting agencies, n l If you do an in-house investigation (ex: calling references, googling employees), it is not covered by FCRA Does not cover reports from government agencies
Fair Credit Reporting Act Requirements – Initial Disclosure and Written Authorization n Employer must make a clear and conspicuous written disclosure to the consumer that a report may be obtained l l n n n Note that the report may be used for employment purposes Can also seek consent to run future checks for post-hiring decisions Disclosure must be made in a separate document from the employment application Obtain the consumer’s prior written authorization (can be on same page as disclosure) Obtain name, address, SSN, driver’s license number, and signature
Fair Credit Reporting Act Requirements – Certification to the Consumer Reporting Agency n Certify to the consumer reporting agency that you satisfied the disclosure/authorization requirement, that you will comply with the Act’s requirements if it makes an adverse employment decision, and that the employer will comply with the FCRA and will not violate state and federal discrimination laws or regulations in its use of the credit report
Fair Credit Reporting Act Requirements – Pre-Adverse Action Disclosure n Before an employer takes an adverse action against an applicant or employee because of his or her credit report, employer is required to: l l l Notify the applicant that you are considering not hiring him or her because of information in credit report Provide applicant with a copy of the report Provide applicant with copy of the “Summary of Your Rights” form Provide information about company that supplied the report and how to dispute the accuracy of the information Provide statement that background company did not make the decision to take the adverse action
Fair Credit Reporting Act Requirements – Post-Adverse Action Disclosure n If employer takes adverse action because of an individual’s credit report, employer is required to: l Provide information about consumer reporting agency that supplied the report and how to dispute the accuracy of the information and obtain a free report l Provide statement that consumer reporting agency did not make the decision to take the adverse action
Fair Credit Reporting Act Employee Misconduct Exception n Certain FCRA requirements do not apply if an employer is investigating suspected misconduct related to employment or compliance with federal, state, or local laws or any written policies of the employer. l Employer does not have to obtain authorization, but does have to disclose some information after taking adverse action (summary of nature and substance of information)
Fair Credit Reporting Act New Forms go into effect January 1, 2013!!! n New “Summary of Your Rights” form must be provided n Change is due to transfer of responsibility for Act from Federal Trade Commission to the new Consumer Financial Protection Bureau n Provides new contact information
Fair Credit Reporting Act Things to consider before doing credit checks on applicants and employees n EEOC has said that employment credit checks have a disparate impact on racial minorities n Should only use a credit history check when such information is job related and consistent with business necessity (such as for jobs that involve handling money n Keep background investigation reports separate from personnel files
Background Checks – the latest from the EEOC! n n On April 25, 2012, the EEOC issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII” Reinforced the EEOC’s long-held position that criminal background information may have a disparate impact on individuals because of their race or national origin in violation of Title VII
Background Checks – the latest from the EEOC! n In order to avoid a disparate impact claim, employers should not ask about arrests l The EEOC takes the position that an exclusion based on arrest is never job-related or consistent with business necessity n n Does not establish criminal conduct Presumed innocent until proven guilty Many arrests do not result in convictions An arrest by itself may not be used to deny an employment opportunity
Background Checks – the latest from the EEOC! In order to avoid a disparate impact claim, employers should utilize a targeted screening process for criminal convictions and an opportunity for individualized assessment: n n n Step 1 – Notify individual that he or she has been screened out because of conviction Step 2 – Give opportunity to demonstrate that exclusion should not be applied due to his or her particular circumstance Step 3 – Consider whether new information warrants an exception and shows that policy as applied is not job related/consistent with business necessity
Background Checks – the latest from the EEOC! Factors that must be considered during the targeted screening process: 1. The nature and gravity of the offense 2. The time that has passed since the offense, conduct, and/or completion of the sentence, and 3. The nature of the job held or sought
Background Checks – the latest from the EEOC! Best Practices: n Eliminate policies that automatically exclude people from employment based on any criminal record n Train managers and hiring officials about Title VII’s prohibition on discrimination n When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity
Background Checks – the latest from the EEOC! Best Practices: n Develop a narrowly tailored written policy for criminal background screening l l l n n Identify essential job requirements Determine the specific offenses that may demonstrate unfitness for performing such jobs Determine the duration of exclusions for criminal conduct Record the justification for the policy Note and keep a record of consultations and research considered in crafting the policy and procedures Train managers about the policy Keep information about criminal records confidential
Social Media Update Stored Communications Act n Makes it a federal offense for employer to access, without authorization or in excess of authorization, communications stored at a facility which provides an electronic communications service l In other words, no spying on passwordprotected
Social Media Update – Consent? n Pietrylo v. Hillstone Restaurant Group – no consent because of employee’s subjective fear of losing her job. l n The employer was found liable on the SCA claim even though it had gained access through an authorized user. Snyer v. Fantasy Interactive, Inc. l No consent to read conversations that occurred on Skype out of office, despite warning about monitoring communications.
Social Media Update – Invasion of Privacy Claims n Several court have held that an employer who accesses an employee’s social media profile without the employee’s consent may be liable for invasion of privacy. l l Ehling v. Monmouth-Ocean Hosp. Serv. Corp. , 2012 WL 1949668 (D. NJ. , May 30, 2012)(holding that the employee had a reasonable expectation in her Facebook profile, which her employer accessed by coercing a coworker who was Facebook friends with the employee) Don’t ask coworkers to help you spy!
Social Media Update – Legislative Trends n Maryland, Illinois, and California prohibit employers from asking for log-in information for social media websites. l n n California has exception Similar bills introduced in NY, MA, MI, MN, MO, NJ, OH, PA, SC, and WA Also, two federal bills currently in committee: l l Social Networking Online Protection Act – prohibits ERs from asking for passwords Password Protection Act – criminal penalties for coercing access
Social Media Update Best Practices: n Ok to check applicant/employee’s publicly available social media profiles n It is NOT ok to access non-private social media profiles without permission l l l No fake friending No coercing an applicant/employee’s facebook friend to let you see their page Asking for password is also not advisable
Pre-Employment Inquiries Disability n n What can an employer ask with regard to an applicant or prospective employee’s medical condition? Question is governed by the Americans with Disabilities Act (“ADA”) and the EEOC’s guidance entitled “ADA Enforcement Guidance: Pre-employment Disability. Related Questions and Medical Examinations”
Pre-Employment Inquiries Disability n n As a general rule, an employer cannot directly ask an applicant whether he or she has a disability and it cannot ask closely related questions that would require a response that would reveal a disability. BUT an employer may ask about the applicant’s ability to perform the essential functions of a job
Pre-Employment Inquiries – Disability n What not to say: l l Do not ask if the applicant is disabled Do not ask if the applicant has a specific disability Do not ask the applicant about his or her general physical condition Do not ask about TEMPORARY impairments that could relate to possible long-term conditions (ex: Do you expect that broken arm to heal normally? )
Pre-Employment Inquiries Disability n What not to say: l l l Do not ask about leave for treatment or how long person has been disabled, even if the applicant volunteers the fact that he or she has a disability Do not ask how many days the applicant was out on medical leave from prior positions Do not ask applicant about prior workers’ compensation history
Pre-Employment Inquiries Disability n What not to say about reasonable accommodations: l n Do not ask the applicant whether he or she will require reasonable accommodations to perform the job functions UNLESS l l l Disability is obvious Applicant has voluntarily disclosed the disability, or Applicant has voluntarily disclosed the need for a reasonable accommodation
Pre-Employment Inquiries Disability n What to say about reasonable accommodations: l l If applicant says that no accommodations are needed, employer should not ask additional questions about reasonable accommodation If applicant says an accommodation is needed, employer may ask about the type that is needed n But may not ask about the underlying disability
Pre-Employment Inquiries Disability n What you may say: l Ok to ask about an applicant’s ability to perform job functions with or without reasonable accommodation n l l But can’t refuse to hire because of inability to perform marginal functions Ok to ask if applicant can perform a specific job requirement or function (e. g. lifting 50 lb. ) Ok to ask an applicant to describe or demonstrate how he or she can perform a job function (should be asked of all applicants unless applicant has an obvious disability)
Pre-Employment Inquiries Disability n Attendance requirements l Be careful with this one…the EEOC has been cracking down on one-size-fits-all attendance policies
Pre-Employment Inquiries - Age n What you may say: l l n Can you show proof of age upon hire? Are you over 18? If not, can you produce a work permit upon hire? What you cannot say: l Do not ask for the applicant’s: n n Age, birth date Dates of school attendance or graduation Questions that would identify applicant as 40 or older Dates of military service
Pre-Employment Inquiries – Citizenship n What you may say: l n Ok to ask if applicant can provide proof of being legally authorized to work in U. S. What you cannot say: l l Do not ask where applicant was born Do not ask if applicant is a U. S. citizen
Pre-Employment Inquiries – Marital Status and Dependents n What you may say: l l n Ok to ask if applicant can meet a particular work schedule and whether the applicant has any other commitment might hinder attendance Ok to ask if applicant knows of any anticipated absences (if applicant reports anticipated absences due to religion, employer may be required to accommodate) What you cannot say: l Do not ask if an applicant is a parent, how many children the applicant has, or if the applicant has daycare plans
Pre-Employment Inquiries – Language Skills n What you may say: l n Ok to ask about proficiency with languages other than English if the job requires someone who is bilingual or multilingual What you cannot say: l Do not ask if an applicant is a parent, how many children the applicant has, or if the applicant has day-care plans
Pre-Employment Inquiries – Race or National Origin n What you may say: l n If job requires a security clearance, make a job offer first conditioned on obtaining clearance What you cannot say: l l It is impermissible to ask about applicant’s race or national origin Do not ask about foreign addresses, first language, or how applicant became proficient in foreign language Do not ask about birthplace Do not ask about things that might have racial implications like the color of an applicant’s hair, eyes, or skin
Pre-Employment Inquiries n What you cannot say: l Do not ask about applicant’s religion or activity with religious groups n l Ok to state the employer’s regular working hours and ask if the applicant can work this schedule Do not ask about applicant’s sexual orientation
Forms Title Goes Here Forms! Contact Info: Heidi Doescher – heidi. doescher @ogletreedeakins. com Stephen Parker stephen. parker@ogletreedeakins. com
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