4 Considerations for an I-9 Compliance Audit

With changing legislation surrounding Form I-9 compliance, organizations need to be proactive, to ensure accurate record keeping on all required documentation.  This includes auditing I-9 records every few years, to ensure all information is up-to-date and forms are correctly filled out.  The U.S. Department of Homeland Security’s Immigration and Customers Enforcement (ICE) has the legal right to review your organizations I-9 records at will.

Below are 4 considerations for an I-9 compliance audit:

  1. Fill Out All Sections Accurately: The basic information on the I-9 from should be filled out completely and accurately.  This includes; dates and names on all forms.  “A construction company was recently penalized $228,000 for multiple compliance violations…submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2.”[i]  Take the time to review instructions and ensure that the employee has filled out the form properly.  If not, correct the issues.
  2. Employee Roster Information Updates: Ensure you have an accurate headcount list of current and past employees, prior to beginning an audit.  Remember, employees hired after November 6, 1986 must have an I-9 on file.  If an employee is missing an I-9, the organization must obtain one as soon as possible.
  3. I-9 Documentation: “Documentation for former employees is only needed for one year after separation or three years from date of hire (whichever is later), so no need to clutter your files with unnecessary information.”[ii] Ensure that you are obtaining the required documentation from List A or List B and List C.
  4. Necessary Signatures: This is consistent with the requirements mentioned previously.  All forms need to be signed by an employer representative and the new hire employee.  This includes remote workers.  The process isn’t complete until the forms are verified for accuracy and contain the proper information with signatures.

The SHRM article quoted throughout, contains other examples of companies that failed to complete accurately and sign the I-9 forms and the fines for these violations.  The form contains directions for both the employer and employee.  Work through the steps and ensure that the forms are accurate and up-to-date, to protect the organization from any violations and fines.  If you have questions about mistakes or conducting an audit, seek guidance and be open to suggestions.  Proactive audits necessary to ensure compliance, as the laws and forms continue to evolve.  Remember, using the new I-9 form is required now and has been in effect as of September 18, 2017.  The link to the new form and other instructional information is here: Updated Form I-9

[i] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/prepared-for-i9-compliance-audit-ice.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/prepared-for-i9-compliance-audit-ice.aspx

 

6 Ban the Box Laws in New York and Pennsylvania

Some employment applications ask about criminal convictions for prospective employees, either written or on the online application.  Ban the box legislation changes, have made it illegal for employers to ask prospective employees and job applicants certain questions related to criminal convictions (in certain cities and states), until the interview stage or until a conditional offer of employment is made.  The rules within the jurisdiction vary, based on location and legislative requirements.  Yes, that means more complexity related to posting positions, recruiting and interviewing in certain cities and states.  “The trend of states and municipalities enacting these so-called “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.”[i]  For the purposes of this article, we will focus on New York and Pennsylvania laws.

Below are 6 ban the box laws in NY and PA:

  1. NY-Buffalo: The law impacts private employers with 15 or more employees/contractors doing business with the city.  Banning criminal history questions on the initial job applications.
  2. NY-New York City: The law impacts all employers with four or more employees. No criminal inquiries prior to the conditional job offer.
  3. NY-Rochester: The law impacts all employers with four or more employees and contractors doing business with the city. No criminal history inquiries until after the initial job interview or conditional job offer.
  4. NY-Syracuse: The law impacts city contractors. No criminal history inquiries and background checks until after the conditional job offer.
  5. PA-Philadelphia: The law impacts all employers with at least one employee in the city. No criminal background checks prior to the conditional job offer.
  6. PA-Pittsburgh: The law impacts contractors and vendors doing business with the city. Banning criminal history inquires until the applicant is deemed otherwise qualified for a position.

The laws vary in the way they are written and the legal requirements for the employer in each location.  The laws vary throughout the country, based on state or city requirements.  Some states have no ban the box requirements, currently.  As leaders, we need to understand the laws and know that a recruitment plan, job application and interview/offer process, that works in New York, might not work in California or Minnesota.  Laws continue to evolve at both the federal, state and municipal level.  These laws impact the questions we can ask and the information we can request before, during and after the job interview.  If you have questions regarding Ban the Box legislation, seek for guidance.  Changes occur quickly, and impact businesses of all sizes.

[i] SHRM Legal and Compliance Tools/Resources

4 Tips Complying with State and Federal Workplace Safety Standards

Workplace safety rules and regulations continue to evolve at the federal and state level, just as labor and employment laws and regulations have.  As I have recently started revising a safety manual for a client, I now have a profound respect for workplace safety professionals.  Because laws and regulations do vary at both the federal and state level, we as leaders need to be aware of changes in legislation, that can and will impact our organizations.

Below are 4 tips on complying with state and federal workplace safety standards:

  1. Federal OSH Act: Passed in 1970, “covers most private employers and their workers. However, OSHA allows states to develop their own workplace health and safety plans, as long as those plans are “at least as effective” as the federal program.”[i]
  2. Multi-State Employers: Currently, twenty-one states and Puerto Rico have OSHA-approved plans that cover government employees at the state and local level, as well as private employers. Five other states and the U.S. Virgin Islands currently have plans that cover only state and local government employers.
  3. State Laws: States can have laws more stringent than the federal requirements and/or standards that are not addressed by federal OSHA. This is comparable to HR laws and regulations; minimum wage, paid family leave, exempt/non-exempt status, background checks, etc.  Review state and local requirements, as well as OSHA approved state plans.
  4. Compliance: Employers should review the federal requirements to ensure compliance and then review state compliance standards. “”Stay on top of the state plan regulations,” Martin said. “Assuming the state plan has the same regulations as federal OSHA may be a safe bet 80 percent of the time, but the differences can burn you.””[ii]

For Additional Information: OSHA State Plans Website

As we have seen under the current administration, laws and regulations continue to change.  This will have an impact on OSHA standards at the federal level.  Under the Obama administration, a law was passed that required certain employers to submit workplace injury and illness records through a portal on the OSHA website in July 2017.  The Trump administration pushed compliance back to December 1, 2017, to evaluate the rule and requirements.  Regardless, the electronic record keeping requirement can still be implemented at a state level, in certain states.  Be aware of these changes and recognize the impact they can and will have on your organization.  If you have questions, continue to seek guidance.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/state-workplace-safety-standards-may-differ-from-osha.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/state-workplace-safety-standards-may-differ-from-osha.aspx

 

5 Steps for a Successful Open Enrollment Period

During the months of October and November, employers annually conduct open enrollment sessions for employees and family members. These informational sessions, communicate upcoming benefit changes, new costs and any other relevant information that will impact the employee or employees family. The open enrollment sessions also provide an opportunity for the employee and/or significant other to ask questions regarding benefits and costs. SHRM published, “6 Simple Ways to Improve Open Enrollment,” in August 2017. Additional information or resource material, will be helpful to us as leaders and to our employees who need the information to make the best decision for themselves and their families, related to benefits.
Below are 5 steps for a successful open enrollment period:

1. Prepare, Prepare, Prepare: Generate and disseminate information prior to open enrollment meetings. This will provide employees with the opportunity to review the information prior to the open enrollment sessions. Ensure that the information is communicated through the proper organizational channels and it is easy to understand. Do not make benefit information over complex or complicated. Develop a frequently asked questions sheet that will provide assistance to employees when thinking about questions and possible solutions. We cannot cover every questions, this format will help generate thought and answers.

2. Focus on the Employees: This step encompasses step #1, in that we need to prepare information for the workforce that is relevant and timely. Knowing your employees will add value to focusing on specific tools and resources for the open enrollment process.

3. Identify Needs: “Review the results of previous years’ open enrollment efforts to make sure the process and the perks remain relevant and useful to workers.” Do you send out a survey asking for feedback from last year’s open enrollment? What are the demographics of the workforce? Do you have metrics associated with benefit usage?

4. All Available Resources: Are we utilizing all the available resources inside and outside of the organization? Is the marketing department to develop material and communications? Are we partnering with brokers, insurance carrier and vendors to provide sufficient resources during the open enrollment process? Are we communicating all information? Remember NYS Paid Family Leave. Be creative. If you were in the employee’s shoes, what resources would add value and engagement throughout the enrollment process? Don’t assume that the carrier will say no, if you never ask, you will not know the answer.

5. Spouses Involvement: Many organizations provide the opportunity for spouses and domestic partners to be involved in the open enrollment process. Meeting times might need to be changed from day to night or weekend sessions. Other options could be webinars or one-on-one meetings. Involving the spouse will generate more questions and continued engagement.

Open enrollment can be a complex and confusing process for any employee. As leadership, we need to be aware of the needs of our workforce and find proactive solutions to manage and communicate these complexities. “Benefits enrollment strategies are always evolving. What worked last year may not be relevant this year. But you can’t go wrong putting employee’s needs first.” If it was you, what questions would you have during open enrollment?

– Matthew Burr, HR Consultant

Matthew@Burrconultingllc.com

Burr Consulting, LLC

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Personnel Records Request in New York State & Paid Family Leave Letter Correction

Occasionally, an employee will request access to their personnel file during the employment relationship or after departing from the organization.  What are our legal obligations in providing this information to current or former employees?  There is currently, “no federal law that requires private employers to provide employees access to their personnel files, but there are many state laws that do grant access.”[i]  The answer varies, based on state specific laws and regulations.  What does that mean for employers in New York State?  Currently there is no law in New York State which permits an employee to examine his or her personnel file.  There is currently an amendment in the New York State Senate to provide public and private employees the right to review personnel files, the bill is in Committee and was proposed initially 2013-2014 and is now being proposed again in 2017-2018.  However, Pennsylvania allows an employee to inspect certain information from their own personnel files maintained by an employer.  Below are websites for New York State, Pennsylvania and the Society of Human Resources Management:

NY State Worker’s Rights Frequently Asked Questions

Senate Bill S2191: NYS Right to Review Personnel File

PA Inspection of Employment Records Law

SHRM Article: Personnel Records Access Legal Obligation Federal Laws & Policies

Again, laws vary state by state.  If you are a multi-state employer, research the specific laws and regulations and be consistent with employees.  Remember to look for (.Gov) or credible website sources, when searching for current state laws and regulations.  If you are required to provide access to employees on all or certain personnel file information, ensure you have a policy in place that is fair and consistent to all employees.

Below is a correction to the draft communication letter, when communicating NYSPFL information throughout the organization.  Correction underlined as regulation has changed, from $1.65 weekly maximum contribution to $85.56 annually:

The cost of Paid Family Leave benefits is paid for by the employee via payroll deductions.  The Company will be deducting a percentage of your average weekly wages (determined by New York State) to fund Paid Family Leave benefits.  The deduction rate, which is set by New York State and is the same for everyone, is 0.126% of each employee’s weekly wage with a weekly wage cap of $1,305.92.  The maximum contribution is currently $85.56 annually.  For example, if the employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for Paid Family Leave would be $1.26 for that week.  For employees who make more than the state’s average weekly wage of $1,305.92, the Paid Family Leave deduction will be capped at $1.65 per week (0.126% of $1,305.92).  We will be designing and communicating a more detailed Paid Family Leave policy in the future to be effective in 2018.  If you have any questions please contact ____.”

 

– Matthew Burr, HR Consultant

Burr Consulting, LLC

 

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/copypersonnelfiles.aspx

 

New York State Paid Family Leave Communication Letter

In late July, I wrote a brief article regarding “6 Need to Knows About the New York State Paid Family Leave (NYSPF) Legislation” and will more than likely write a few more articles about the legislation as we approach deadlines and implementation in 2018.  We are still patiently waiting for final rules and regulations to be issued from the New York State Workers’ Compensation Board, which continue to be communicated slowly.  Continue to monitor for any changes that can and will impact your organization.  As we approach 2018, we should begin communicating with employees about NYSPFL and the upcoming payroll deductions (if you haven’t started the deductions yet).

Below is a draft communication letter to consider when communicating NYSPFL information throughout the organization, which can also be used as a memo for a bulletin board or intranet/email message:

“Effective January 1, 2018, employees could be eligible for Paid Family Leave, as permitted under the New York Paid Family Leave Benefits Laws and Regulations.  After this date, eligible part-time and full-time employees may take Paid Family Leave under certain conditions, including: (1) to care for a family member with a serious health condition, (2) to bond with a child after birth or placement for adoption or foster care within the first 12 months after the birth or placement, or (3) because of any qualifying exigency arising from the fact that an employee’s spouse, domestic partner, child or parent is on active duty (or has been notified of an impending call or order to active duty) in the armed forces of the United States.

Paid Family Leave will phase in over 4 years with a gradually increasing benefit amount and duration, as shown below:

The cost of Paid Family Leave benefits is paid for by the employee via payroll deductions.  The Company will be deducting a percentage of your average weekly wages (determined by New York State) to fund Paid Family Leave benefits.  The deduction rate, which is set by New York State and is the same for everyone, is 0.126% of each employee’s weekly wage with a weekly wage cap of $1,305.92.  The maximum contribution is currently $1.65 each week.  For example, if the employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for Paid Family Leave would be $1.26 for that week.  For employees who make more than the state’s average weekly wage of $1,305.92, the Paid Family Leave deduction will be capped at $1.65 per week (0.126% of $1,305.92).  We will be designing and communicating a more detailed Paid Family Leave policy in the future to be effective in 2018.  If you have any questions please contact ____.”

Other considerations for NYSPFL Communication Letter and/or Policy:

  • Dates for deductions and payroll processing
  • Concurrent use with Family Medical Leave (remember FMLA varies in coverage)
  • Concurrent use of vacation and/or other paid time off
  • Eligibility, job protection and benefits protection regulations
  • Provider information, certification forms and submission processes
  • Approval and denial information

Additional organizational considerations for NYSPFL:

  • FMLA policy updates
  • Handbook updates
  • Labor and employment law posters/legal communication

The letter is designed for proactive communications.  As laws and regulations evolve, the letter/communication tools will also change.  Organizations should consider developing a frequently asked questions list, to assist employees in better understanding NYSPFL laws.  

 

– Matthew Burr, HR Consultant

8 Thoughts on Selecting an HRIS or Payroll Management System

Recently, I conducted a webinar on HRIS and Payroll Management Systems.  As leaders, we need to have a clear understanding of organizational needs for these systems.  Is the organization prepared to implement a new system or upgrade to a different system?  Are either of the systems necessary for the success of the organization?  Will it make the organization more efficient?  Are we prepared to pay for the new system?  Can we internally manage the new system?  There are many questions to consider prior to purchasing a system or buying software.

Below are 8 thoughts on selecting an HRIS or Payroll management system:

  1. Organizational assessment: Do you have the resources inhouse to select a system or should an external consultant (neutral) guide the organization through the process?
  2. Organizational needs: How would a new system work within the strategic plan of the organization?  Who is responsible for processing payroll?  Which reports do we need?  Turnover, terminations, new hires, Affirmative Action and other compliance reports.  Do we want an employee-self service module?  What about cellphone aps?  Will employees enroll in benefits on the new system?  Is it just for payroll processing?  What about all these modules?
  3. Project planning: What is the budget for the new system?  Do we have IT support to manage the new system?  Do we have server space for the new system?  Do we have the time to invest in project planning and project implementation?  As we approach the fall months, open enrollment, holidays and performance reviews will take priority.  Time is important for the success of a major implementation.
  4. Evaluating available systems: Develop a spreadsheet that ranks and rates the available system, based on the needs assessment.  What does the organization need and how will we measure available systems?
  5. Project team: “Critical stakeholders may differ from organization to organization, but the considerations and evaluation committee should at least include members from the following departments: IT, payroll/finance/accounting, HR, compensation, performance management, training, recruiting, operations.”[i] Operations is a major stakeholder in the selection process.  Supervisors, managers and employees will be inputting and approving timesheets.  They need to be included in the selection process.  Slow and inefficient systems take away from operations.
  6. Requesting the proposals: Utilize the RFP process within your organization and seek four to seven bids from vendors.  Include information about the organization, project specifications (organizational needs), high-level budget information and project schedule/implementation dates.  Ensure you leave enough time to evaluate systems, 3-6-month commitments on current pricing schedule.
  7. Trial the systems: The project team should meet with three to four potential vendors.   A demonstration of the systems should be included in the evaluation.  Utilize the evaluation spreadsheet that was developed and be prepared to ask questions.  The entire team should be present during the demonstrations and evaluation discussions.
  8. Make your choice: Upon selecting one or two final systems, a request should be made to each vendor for references and potential onsite visits.  The vendors should provide current or past clients.  If they avoid providing references, this might a red flag during the selection process.

Once the finalist has been selected, the organization should negotiate a service contract.  Other negotiation considerations; training, IT support, cloud support, compliance updates, software updates, warranties, self-service, cellphone aps and modules.  Does the organization need a system with all the bells and whistles?  Ensure that you are not upsold on modules and system add-ons you do not need or will not use.  Hold the vendor accountable to the agreed upon service contract.  If you are unclear on the process seek guidance and welcome advice.

 

– Matthew Burr, HR Consultant

Burr Consulting, LLC

 

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtoselectanhrissystem.aspx

6 Need to Knows About New York State Paid Family Leave

I have written about New York State Paid Family Leave three or four times over the past 8 months, and will more than likely write a few more articles about the legislation as we approach deadlines and implementation in 2018.  We are still patiently waiting for final rules and regulations to be issued from the New York State Workers’ Compensation Board, which continue to be communicated slowly to employers and insurance companies.  Continue to monitor for any changes that can and will impact your organization.

Below are 6 Need to Knows about NYSPFL as we approach 1/1/2018:

  1. Employer Eligibility: Qualifying reasons for leave under current PFL include; bonding with a new child (birth, adoption or placement in foster care), employee providing care for a child, parent, grandparent, grandchild, spouse or domestic partner with a serious health condition and qualifying exigencies arising from military services of the employee’s spouse, domestic partner, child, or parent.  Serious health condition or qualifying exigencies, follow the same guidelines that we see under the Family Medical Leave Act (FMLA)
  2. New York State’s Average Weekly Wage: The current average weekly wage is $1,305.92.  On March 31st of each calendar year, the rate is recalculated by the New York State Department of Labor.  More than likely, we will see this rate continue to increase year over year.
  3. Employer’s Obligation to Fund Paid Family Leave: “Although employers are required to provide PFL benefits to eligible employees, employers are not required to pay anything towards the cost of those benefits. Paid family leave is intended to be 100% employee-funded.”[i]  The Worker’s Compensation Board has yes to publish all rules in this area, continue to monitor for additional updates and new guidelines.
  4. Maximum Deductions: The most that can be deducted is 0.126% of the New York State average weekly wage.  This will be for an employee’s weekly wage.
  5. Insurance or Self-Insure: The employer can forego obtaining insurance and has the option to self-insure. Currently, the employer must elect to do so and file the required paperwork with New York State, no later than September 30, 2017.
  6. Employer’s Offering Benefits That Exceed NYSPFL: If an employer is already offering paid family leave that exceed the legal requirements and pay full salary during leave, the employer may request reimbursement from the insurance carrier for advance payment of benefits.  The employee is not entitled to add-on or double dip NYSPFL or short-term disability.  Benefits are limited to a total of 26-weeks; paid family leave and disability.   

 

As we approach January 1, 2018, continue to watch for updated rules and regulations from the New York State Worker’s Compensation Board.  There are still unanswered questions and areas of the legislation that need to be clarified.  Organizations should now be working with insurance companies or determining if they would like to be self-insured.  Do not wait until the last minute to begin implementing, taking deductions or communicating with the workforce.  The law is complex, seek guidance if you are confused.

New York State Paid Family Leave Resource Website

FMLA & NYPFL – Key Differences

PFLvsFMLA

[ii]

– Matthew Burr, HR Consultant

[i] https://www.bsk.com/media-center/3746-labor-employment-faqs-mdash-things-you-want-and-need-know-about#.WWfMyYVh068.linkedin

 

[ii] Guardian NYSPFL Presentation

4 Updates on the DOL Overtime Rule

I first want to highlight the background of the overtime rule, from 2016 through current day.  In November 2016, a district court in Texas blocked the overtime rule put forth under the Obama administration.  It was scheduled to raise the salary threshold from $23,600 to $47,476 on December 1, 2016.  Moving to current day, under the Trump administration, the decision was appealed, to better understand and determine the Department of Labor’s authority in setting salary thresholds.  The 2016 ruling is currently moving (slowly) through the litigation process.  However, the Department of Labor has suggested new and more complex alternatives to the salary threshold and overtime rule(s).

Below 4 on the DOL’s Overtime Suggestions:

  1. Request for Information: On July 26, 2017, the Department of Labor issued a request for information (RFI) during the overtime rule making process.  “The use of an RFI in the rule making process is optional but the DOL chose this option rather than immediately publishing a proposed rule in light of pending litigation over the 2016 overtime rule.”[i]  The RFI was published in the Federal Register and comments will be public record.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-15666.pdf

  1. Cost-of-Living-Based Salary Test: This is comparable to what we have seen with minimum wage levels and exempt/non-exempt weekly rates, throughout New York City and New York State.  The suggested rates would vary based location and cost of living, a varying scale of exempt and non-exempt rates.  Living in Washington D.C. costs more than living in the rural south.  There will be significant challenges with this option, employees that travel, working in more than one location in different areas of the country.
  2. Litigation and Other Threshold Proposals: Continue to watch for any rulings in the current court proceedings on the Department of Labor’s authority in setting salary thresholds. Also, we could see multiple proposals throughout this process on overtime and salary thresholds, under the new administration.
  3. New York State Regulations: Regardless of changes made at the federal level, we will see changes in the minimum wage rate and exempt/non-exempt rates on January 1, 2018.  Exempt and non-exempt for the specific executive and administrative classifications.  Both increases/changes will vary by region, throughout the state.

 

The laws, regulations and salary thresholds will continue to evolve, through the litigation process by the Department of Labor, request for information proposal and rule making process under the new administration.  Ensure that your organization is compliant with state and federal laws regarding exempt, non-exempt and salaried non-exempt statuses.  There are duties tests to assist employers in determining overtime eligibility, published by the federal government.  If you are confused, seek guidance.  Certain positions can be confusing and determinations are complex.

 

 

– Matthew Burr, HR Consultant

 

 

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ot-rfi-multiple-salary-levels.aspx

 

25 State Specific Labor Poster Changes

In February, I wrote a brief article regarding the six changes to the federal labor law poster penalties.  The fines associated with these changes and non-compliance (or not updating) with current labor poster regulations did increase.

Labor and employment regulations on these posters at both the federal and state level can and have changed during the year.  They do not always change at the end of or beginning of a calendar year.  As leaders, we need ensure these posters are updated timely with accurate information.  There are times when posting requirements will not change from year to year.  However, the changes we have seen over the past 2-3 years are significant.  Below are 25 state specific labor poster changes to be aware of in 2017:

25 Poster Changes in 2017.jpg

[i]

New York State minimum wage increased at the end of 2016 and will increase again at the end of 2017.  Remember that NYS Paid Family Leave might also be added to the posting requirements in 2018.  Many of our organizations operate in multiple states.  We need to ensure the labor posters are updated with accurate federal and state information.  An updated poster in New York State does not guarantee that the information in any other state of operation is up-to-date.  Review posters in all locations to ensure legal compliance.  Certain payroll companies will provide updated posters, based on the agreed upon contract.  There are services organizations can subscribe, to receive the updated posters when changes are made on the federal, state or local level.  If you are unsure on the legality of your organizations posters, seek guidance.  Do not assume it is up-to-date.  Buying a poster (or downloading the information for free) is much cheaper than paying a fine.  Audits and reviews are always helpful in understanding what changes need to be made!  The website below provides more information on state specific mandatory updates:

Posterupdates.com

 

– Matthew Burr, HR Consultant

 

[i] SHRM.org