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Form I-9 Violations Cost Employer $109,000 in Penalties

Posted By Editor, Laurie, Wednesday, February 15, 2017
Updated: Wednesday, February 15, 2017
Contributed by Kandis Sells


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If you (1) regularly staple a copy of a new hire’s identification documents but don’t actually fill out the Form I-9, (2) don’t always complete the Form I-9 within three business days, (3) don’t keep I-9 forms for former employees more than a year, or (4) have no idea what a Form I-9 is, you may want to take note of the penalties against an employer that were recently upheld in federal court. In 2013, the federal Immigration and Customs Enforcement agency or “ICE” (now U.S. Customs and Immigration Services or “USCIS”) fined the employer almost $800 per violation for some fairly common I-9 mistakes found during an agency audit.

The penalized mistakes included:

  1. Failing to complete I-9 forms within three business days of hire for 54 employees;

  2. Failing to actually fill out Section 2 of the Form I-9 for those 54 employees, where the I-9 forms were stapled to a copy of the employees’ identification and work authorization documents instead; and

  3. Failing to retain the I-9 forms for 84 former employees for at least 3 years after hire or 1 year after termination, whichever time period is longer.

The employer appealed the fines to the Second Circuit Court of Appeals and lost. The court ruled that all of the violations above are “substantive” violations subject to higher fines than if they were merely “technical” or “procedural” violations. (Buffalo Transportation, Inc. v. U.S.A., 2nd Cir, Dec. 2016.)

Unfortunately, none of these violations are all that uncommon. Other common mistakes that can result in penalties include: allowing the employee to submit a form without fully completing Section 1; no company representative signature and/or date in Section 2 of the form; failing to complete Section 3 when an employee’s work authorization expires
and must be re-verified; or using an expired version of the I-9 form itself.

The latest version of the Form I-9 became mandatory as of January 22, 2017. All other versions of the Form I-9 are no longer valid.

The new I-9 is available as a fillable PDF that can be completed electronically, and provides helpful drop-down menus, instructions, and form checking and completion features
that will alert the company representative if the form is not completed accurately or if required information is missing. 
The new form can also be printed and completed on
paper, the same way previous versions were completed, but then you lose the benefit of the enhanced features which were designed to eliminate costly technical mistakes.

As the employer found out in the case described above, these penalties can really add up. In fact, the penalties for Form I-9 violations were increased in 2016, and are now significantly higher than the fines assessed in that case.

For the types of paperwork mistakes described above, the penalty range rose from $110 - $1,100 per form up to $216 - $2,156 per form.
(The penalty range for unlawful hires increased from $16,000 as the maximum for each unauthorized worker to $21,563 each.)[i]

The good news is there are some simple steps you can take to avoid these costly mistakes:

  1. Train appropriate staff on how to properly complete the Form I-9, and require all new employees to complete the form with a trained staff member on the first day of work.

  2. Use the new fillable PDF Form I-9, and have both the new employee and the company representative fill it out on the computer.
    This method provides helpful directions for filling out the form in real time, flags inconsistent or missing information on the spot, and prevents many technical violations.

  3. Purge old I-9 forms regularly. While it’s important to keep former-employee I-9 forms for the required amount of time, don’t keep them too long.
    At a rate of $2,156 per form for each one with an error, it’s worth the time to pull and shred old forms on a monthly or quarterly basis.

Bonus tip: Total up the $2,156 per form in potential penalties you saved the company for each form properly destroyed, and add it to your quarterly HR performance metrics accomplishments!

[i]See USCIS I-9 website at https://www.uscis.gov/i-9-central/penalties.

 

Kandis Sells is an employment & labor attorney with Vigilant.

Tags:  employment laws  HR West 2017  I-9 violations  labor laws  new hire checklist  Vigilant 

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Judge blocks rule increasing salary for workers exempt from overtime

Posted By Editor, Thursday, December 15, 2016

Contributed by Karen Davis - Senior Employment Attorney, Vigilant.
Vigilant is a sponsor of

Judge blocks rule increasing salary for workers exempt from overtime 

A federal district court has temporarily blocked a U.S. Department of Labor (DOL) regulation that would have taken effect on December 1, 2016, and raised the minimum salary for workers who are exempt from overtime. The ruling applies nationwide. The judge’s action buys more time for the parties to argue whether the rule should be permanently placed on hold. We don’t know yet how long that will take, but it’s reasonable to expect it will occur after the change in administration on January 20, 2017. The incoming Trump administration could voluntarily withdraw from defending the lawsuit, and thus leave the existing salary levels in place. This is still speculation at this point, though.

Here’s why the court decided to temporarily block the implementation of the DOL’s regulation. The federal Fair Labor Standards Act (FLSA) states that “any employee employed in a bona fide executive, administrative, or professional capacity” is exempt from overtime. Congress focused purely on workers’ duties, and didn’t establish a minimum salary. The DOL came up with the idea of a minimum salary for these exempt “white collar” workers. That salary is currently $455 per week and was scheduled to rise to $913 per week on December 1, 2016. (See our
5/18/16 Alert when the DOL published its new rules.) The court said the DOL exceeded its authority by establishing a salary that was so high that it overrode the “duties” test for the overtime exemption (State of Nevada v. U.S. Dept. of Labor, ED Tex, Nov. 22, 2016).

If an employer has already announced salary increases to employees who otherwise would have lost their exemption from overtime on December 1, 2016, the employer needs to decide how to proceed. If the increases were rolled into performance reviews, merit increases, or promotions, any reduction could create employee relations challenges. Any employer that communicated the increases purely as a legal compliance issue may be in a better position to explain why it won’t be implementing them. However, because workers may have been relying on any announced increases in planning their personal budgets, employers should proceed with caution. Also, keep in mind that any wage reductions cannot be done retroactively; employees must receive the full wage that was in effect at the time they performed the work. Stay tuned to see what happens with these overtime rules. We don’t know for certain what the court’s final ruling will ultimately be, or whether the new administration will continue to defend the lawsuit.

Karen Davis is an employment law attorney with significant experience providing advice and counsel to employers. She works with companies of all sizes, as a staff attorney for an employers' association. Connect with Karen Davis on Linkedin.

 

Tags:  DOL  employee  employment law  HR West 2017  minimum wage  Vigilant 

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Six Tips for Leveraging Your Energy as a Strategic Asset

Posted By Laurie A. Pehar Borsh, Thursday, June 16, 2016
Updated: Thursday, June 16, 2016

Contributed by Linda O’Neill, Vice President, Strategic Services, Vigilant 

Vigilant is a sponsor of HR West Seattle - July 15, 2016
 

As business people, most of us know how to work within a budget. We realize our money is limited so we prioritize our needs and spend what we do have wisely. Yet when it comes to energy, many of us fail to manage our reserves, let alone acknowledge that we need to. Like a compulsive shopper who ignores her empty bank account, we continue to overexert ourselvesaccepting yet another meeting request when we’re already booked, working long hours without stopping even after our energy has been depleted.   

The consequences of this behavior are dire. On an individual level, running on empty can take a toll on us physically and mentally, reducing both our satisfaction and our productivity. And on an organizational level, it can lead to low levels of employee engagement, increased medical costs, and high turnover.   

Indeed, studies show that employees who manage their energy are far more productive than those who don’t. For example, a study by The Energy Project found that workers at Wachovia Bank who participated in an energy renewal program brought in more revenue than a control group who didn’t. In addition, 61 percent of participants reported the program had a positive impact on their relationship with clients and customers, while 71 percent said it had a substantial or positive impact on their productivity and performance.  

Energy is our most strategic asset. Yet it’s a limited resource that needs to be managed. To be productive, engaged, healthy, and fulfilled, we need to budget the energy we have so we spend it wisely—both in and outside the workplace. We also need to take time to renew our reserves so that we sustain our energy over time. 

So how exactly can employees manage their energy more wisely? Here are six tips to take you from energy deficit to high energy reserves: 


  • Understand what depletes your energy. Make the time to quiet down and observe yourself without judgment. This can be accomplished through meditation, a walk around the block, or just sitting quietly. Recognize what makes you feel tired, stressed, anxious, or resentful. And listen when you hear yourself say, “Enough is enough.”  

  • Recognize what gives you energy. Pay attention to who you are, what your values are, and what you want from life. Ask yourself when you’re your most optimal self. Does being around people give you energy? Is it quiet time at your desk? Is it completing a specific type of project? Speaking in front of a group? What gives you peak energy is also most likely where you make your most meaningful contributions. 

  • Set boundaries that help you be your best. Once you determine what gives you energy, you can proactively work to maintain your energy over time. If you’re at your best in the morning, for instance, but lack energy after you eat, schedule your most challenging activities for when you first arrive at work and your meetings after lunchIf you’re an introvert, break up your meetings over the course of the weekand allow yourself time for renewal in betweenIf you’re an extrovert, intersperse meetings to break up the solo time at your desk. A lot of us have more control over our workday than we realize—and we have the option of saying “no” more than we think we can.  

  • Know what energy you want to be around. Notice how your work environment makes you feel. Does the pace of work energize or drain you? At what pace are you your best? Similarly, do the people you work with make you feel fulfilled or depleted? Whenever possible, surround yourselves with people who leave you feeling uplifted and energized. And ultimately, if the energy of your workplace doesn’t match your optimal self, maybe it’s time for a new job.  

  • Neutralize the effects of second-hand stress. If you work in a demanding environment, chances are there are stressed out people around youLike the flu, stress can be contagious. Yet while we can’t always avoid stressed out people, we can neutralize the negative effects—in the same way that a strong immune system shields us from sickness. In fact, evidence shows that we can boost our “emotional immune system” by meditating, exercising, writing down the things we’re grateful forand whatever else helps us to create a positive mindset. 

  • Find ways to renew your energy. Your personal energy is like the gas in your car. Your vehicle won’t take you where you want to go if you use up the fuel without filling it back up. In the same way, we need to constantly refill our energy reservoir to avoid running on empty. Set boundaries both at work and in your personal life. Make time for renewal by giving yourself permission to take breaks, exercise, nourish yourself, and get the rest you need. And don’t fall into the trap of comparing yourself to other people. Managing your energy for optimal results will look different for you than it does for the person in the office or cubicle next door. Focus on being the best you can be—because in the end, it’s about each of us making our unique and most valued contribution. 
     

Following these six steps will set you on the path toward optimal energy even in the most demanding work environments. By managing your energy, you’ll be able to accomplish more in less time. Even better, you’ll consistently be able to put your best self forward—one that’s engaged, competent, passionate, energetic, and fulfilled.  


About the Author 

Linda O’Neill is an executive coach, organizational development consultant, facilitator, as well as an external and internal communication expert. She specializes in the areas of executive coaching, leadership assessment, leadership/team development and meeting, offsite and workshop facilitation as well as communication strategy and change management. Linda is an International Coach Federation certified executive coach and a certified analyst relations professional. Linda is a certified Hogan and Core Value Index assessment consultant. She joined Vigilant in 2013. Connect with Linda on Linkedin.

Tags:  employee management  employee wellness  energy management  HR West Seattle  Linda O’Neill  Vigilant  workplace performance 

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EEOC spotlight on anti-Muslim discrimination

Posted By Laurie A. Pehar Borsh, Thursday, March 3, 2016

 

By Jon Benson, employment & labor attorney at Vigilant*

The U.S. Equal Employment Opportunity Commission (EEOC) is focusing a spotlight on discrimination against Muslim and Middle Eastern employees. The agency released new webpages and Q&A documents for both employers and employees shortly after the late 2015 terrorist attacks in Paris and San Bernardino. The EEOC advises employers to have a heightened awareness of how these tragic world events, and others, could lead to discrimination in the workplace.

In the case of employees who are Muslim or of Middle Eastern origin (or perceived to be so), the EEOC warns of discrimination based upon religion, ethnicity, national origin, race, or color.

Employers should know that generally they are not held liable for isolated incidents of discrimination or harassment based on the actions of non-supervisory employees. However, once the employer knows about discrimination or harassment by co-workers (or vendors or patrons) against its workers, it has a duty to investigate and take appropriate actions. If the company does not take appropriate actions, including discipline, or allows the conduct to continue, then the employer can be held liable. Overt harassment and discrimination in the form of insults and name-calling are pretty easy to spot. However, other potential forms of discrimination may not be so obvious.

Some of the trickiest situations involve the accommodation of employees’ sincerely held religious beliefs.

Religious accommodation

Title VII of the Civil Rights Act requires employers with 15 or more employees to “reasonably accommodate” an employee’s religious beliefs unless doing so would create an undue hardship for the business. Exactly what is a reasonable accommodation and what is an undue hardship can be specific. But, valid considerations for an employer in evaluating an employee’s requested accommodation include: the relative cost; the burden placed on other workers; and any safety or hygiene issues, just to name a few.

I.                    Dress codes

Dress codes can be a potential source of discrimination claims. Employers generally have the right to set standards for dress and grooming. However, a dress code can come into conflict with an employee’s religious beliefs and practice. One example for Muslim employees is the hijab or other type of head scarf or covering worn by women.

The U.S. Supreme Court recently weighed in on this issue in EEOC v. Abercrombie & Fitch, Inc. In this case, the employer refused to hire a woman who wore a hijab for religious reasons. The woman had otherwise done very well in the interview process and scored highly in the company’s internal evaluation system. Abercrombie & Fitch defended its decision by claiming that the hijab violated the company’s written “Look Policy” which prohibited “caps” of any kind to be worn on employees’ heads. Although the rule was neutral and applied to all types of head coverings, in this case the Court said the employer had a duty to accommodate and that there was no undue hardship to the company in permitting an employee to wear a hijab.

Nevertheless, employers can usually enforce dress codes when there is a valid business-related reason. For example, an employer can generally enforce a dress code, despite an employee’s religious objection if the requirements of the dress code relate to safety or hygiene issues. This is often an issue in manufacturing settings.

II.                  Muslim prayer and varying scheduled breaks

In another case, Muslim employees of a meat packing plant had been using break times for prayers. They had requested that their break times be continually shifted to coincide with sundown in accordance with religious practice. Because the time that sundown occurs varies throughout the year, the break times would constantly change throughout the year. The company refused this requested accommodation and the EEOC filed suit. The company argued it was an undue hardship to be constantly changing the break times because it would impede production in this manufacturing setting and would create problems with other employees having to cover the times for these workers. In this case, a federal court ruled in favor of the employer saying that this represented an undue hardship. The outcome in these types of cases heavily depends on the facts of each case.

Incidentally, this issue also comes up with non-Muslim employees whose religious beliefs and practice prevent them from working on the Sabbath day. Typically, that involves a request not to work on Saturday or Sunday, and the restriction may begin at sundown the previous day.

III.                Alcohol, pork and other prohibited items

Alcohol and pork are considered haram, or forbidden, in Islam. So, what do you do if your employee says they can’t touch or serve to customers any alcohol or pork products? Do you really have to comply with those requests? Of course, the answer is “it depends.” Is there a reasonable accommodation that would not impose an undue hardship on the employer?

Example: Some Starbucks stores now serve wine to customers, though the vast majority of sales remain coffee, tea and their regular items. If a Muslim barista refused to serve the occasional glass of wine, that might be easily accommodated by having another clerk take that order.

By contrast, it would likely be an “undue hardship” for a Muslim job applicant to apply for a server position at a South Florida beach bar catering to college Spring Break students and refuse to handle alcohol.

Be vigilant

Regular training and education for managers and employees on these issues and your anti-harassment policies is essential. Make sure managers understand their role and that your organization responds promptly and investigates any allegations of discrimination or harassment.

About the Author

Jon Benson is an employment & labor attorney at Vigilant, a company headquartered in Oregon, dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve their most complex employment issues.

*Meet the Vigilant team at HR West 2016 - Booth 30

###

Tags:  anti-Muslim  discrimination  EEOC  employees  equal opportunity  HR  HRWest 2016  Human resources management. HR Leadership  muslims  NCHRA  Religious accommodation  Vigilant  workforce 

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Drug use tipster may be blowing smoke

Posted By Laurie A. Pehar Borsh, Thursday, December 3, 2015

With the legalization of marijuana in Oregon and Washington, many employers are seeing an uptick in positive drug tests. There is still some uncertainty among employers and employees alike about what may be acceptable and appropriate “use” and what constitutes a violation of a workplace policy. It is clear that employers still have the right to maintain a zero tolerance policy, but once you have the policy how do you enforce it? One situation that has become more frequent is a tip from a coworker or an anonymous source that an employee “smokes marijuana regularly” or even that employees are using marijuana in the workplace. The appropriate response to those tips is going to depend on your company policy. Do you have a policy that prohibits drug use either on or off the job? Does your policy say you have the right to test employees? What are the specific times (pre-employment, post-incident, random, reasonable suspicion, etc.) that you can test? Is an anonymous tip or a tip from a coworker enough to send your employee in for a reasonable suspicion drug test?


An anonymous tip or an isolated report from a coworker is not enough, on its own, to require a drug test even under a zero tolerance policy. Generally speaking, in order to require that an employee submit to a drug test you must have a policy that says you can, and the individual circumstances have to fit the reasons for drug testing that are enumerated in your policy. Most drug and alcohol policies allow an employer to test when they have “reasonable suspicion” that an employee is violating the policy. Reasonable suspicion doesn’t mean you have to be certain. But you do have to have objective, credible facts that form the basis for a suspicion prior to requiring an employee to submit to a test.


A report of drug use should prompt an investigation such as a check-in with the employee and an evaluation of whether there are other factors beyond the tip that might add up to “reasonable suspicion.” When you talk to the employee, does her performance, appearance, odor, or behavior indicate that she may be using marijuana in violation of your policy? Consider the credibility of the source of the tip; does the person making the report potentially have a grudge against the employee he or she is accusing? (For example, it’s not unusual for an employee going through a difficult divorce to be the subject of a report by a disgruntled spouse.) If you see signs that lead you to believe you may have reasonable suspicion, such as bloodshot eyes and an odor coupled with a glazed demeanor or inappropriate laughter, you should document those observations. Then ask another member of your management team if they notice anything out of the ordinary or troubling about the appearance, behavior, or performance of the employee and have them document their observations as well.


If you and another member of your management team think you have reasonable suspicion, then you should send the employee in for a drug test. Explain the factors that you have observed to the employee and give her an opportunity to explain. Beware, however, of letting the employee talk you out of the test. If her excuse is that she couldn’t sleep the night before and she is just tired, you can reply “if that’s all it is, then your test will be clean. But based on what we have seen today, we have to make sure. It’s our obligation to keep the workplace safe.”


Once you have decided to drug test an employee, it is important that you actually take the employee in to be tested or have the testing or sample collection done on-site. If it’s a reasonable suspicion test, the employee should be taken off the job until you receive the test results. In the event that the employee is clean, then the employee should be paid for the time that she missed while waiting for the results. If the employee tests positive, you should either terminate or offer a last chance agreement according to your company policies and practices.


Of course situations and workplaces all have their unique culture and challenges. If you do receive a tip of drug use, be sure to consult with your employment attorney to ensure that your response is appropriate.



About the Author

 

Lorraine Hoffman is an employment and labor attorney at Vigilant, a company headquartered in Oregon, dedicated to helping companies in Oregon, Washington, Montana, Idaho and California solve their most complex employment issues.


 

 

 

Tags:  drug testing  employee  hr  human resources  Lorraine Hoffman  marijuana  NCHRA  V  Vigilant  workplace 

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