When it comes to I-9 forms (you know, the federally required employment eligibility verification forms required whenever you hire someone) a few lucky employers will deal with common circumstances 99% of the time and won’t be overly fazed by compliance issues if they are meticulous and well-educated on the law. But there are a surprising number of nuances that even experienced employers may not be aware of. For superb guidance, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) provides an easy to read, 69-page brochure.
Don’t be put off by the number of pages. This color brochure, replete with photos, is an excellent reference guide, addressing just about anything you might encounter, including re-hires and the hiring of minors, individuals with disabilities, lawful permanent residents and refugees. The format is well laid out, uses clear language, and provides samples and Q&As. All employers, but especially those new to human resources, small businesses just starting out, and employers with more unusual hiring and documentation situations, are encouraged to review it thoroughly. Because of its friendly format, it’s well worth the read.
We don’t want to replicate such comprehensive USCIS guidance here; but the following are a few basic tips to help you avoid compliance trouble:
I-9 forms must be completed for all new employees, hired after November 6, 1986, even if just for one day of work. The form is never to be completed by applicants, only new hires or those who’ve received an offer of employment. Also, don’t use the form with bona fide independent contractors.
As soon as a candidate accepts your offer of employment, let him or her know the I-9 form is a requirement of employment. Send the form with the list of acceptable documents in advance if there’s time. The law says the form needs to be completed within three days of hire but get it done on the new employee’s first day. The employee may fill out Section 1 at any time after they receive an offer of employment until their first day of work.
Remind new hires, through email or by phone, a day or two before their start date to bring their ID–one from List A will suffice OR they may bring one from List B and one from List C.
Acceptable documents must be original, not copies. If the employee has lost a document, such as an original Social Security card, you may accept as documentation a receipt of their application for a one. The receipt is good for just 90 days; after that the person has to show you the newly issued document.
Providing a Social Security number on Form I-9 is voluntary for all employees unless you are an employer participating in the USCIS E-Verify program, which requires an employee’s Social Security number for employment eligibility verification.
According to the law, you don’t have to photocopy the documents the person provides but it’s a good idea and may demonstrate your good faith effort to comply. What you do for one employee, however, you must do for all. Always apply your policies and practices across the board to avoid any appearance of discrimination. Also, if you retain photocopies, keep them in the employee’s file or with their I-9 form.
Keep I-9s separate from the employee’s personnel file. I-9s can be retained either on paper, microform, microfiche or electronically. See pages 23-25 of the USCIS brochure for the specifics of these various retention formats.
If you rehire someone within three years of the date the employee’s original verification, the original I-9 may be used by completing Section 3. Otherwise be sure to use a new form.
You must retain an employee’s completed I-9 for as long as the individual works for you. Once s(he) terminates, the form is to be kept for either three years after the date of hire, or for one year after the date employment is terminated, whichever is later. It’s a good idea to weed out I-9s you are no longer required to retain. As long as you remain methodical and meticulous about destroying only those no longer needed, your risk exposure will be reduced in the event of an audit. Fewer forms, fewer mistakes.
The US Department of Labor (DOL) is stepping up efforts to crack down on the misclassification of workers as independent contractors rather than as employees. According to its press release, the DOL, in partnership with the IRS, has signed memorandums of understanding (MOU) with agencies or officials in 11 states (Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, and Washington, Hawaii, Illinois, and Montana, and New York.) The intent is to provide better information sharing as well as enforcement efforts aimed at employers that misclassify workers.
There is a strong financial motivation for employers to hire independent contractors rather than employees in the avoidance of a number of expenses: social security and Medicare taxes, unemployment and workers’ compensation premiums, overtime pay and employee benefits. Yet, classifying workers as independent contractors should always be done carefully, particularly in light of heightened scrutiny. There are somewhat different standards related to the Fair Labor Standards Act (FLSA) and used by the IRS. Under the FLSA, courts have looked at the following factors:
1. The extent to which the services rendered are an integral part of the principal’s business.
2. The permanency of the relationship
3. The amount of the alleged contractor’s investment in facilities and equipment.
4. The nature and degree of control by the principal.
5. The alleged contractor’s opportunities for profit and loss.
6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7. The degree of independent business organization and operation.
The IRS looks at the degree of control and independence the worker has related to the following three categories:
1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools and supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.?) Will the relationship continue and is the work performed a key aspect of the business?
Employers would be well-advised to review both sets of standards in relation to its hiring of independent contractors. Further guidance is available at IRS.gov and DOL.gov.
The new poster, required for most private employers that engage in interstate commerce covered by the National Labor Relations Act (the Act,) is available now for free download from the National Labor Relations Board (NLRB) web site or may be obtained from any NLRB regional office. (Note that HRSentry® subscribers may download all state and federal legally required posters for free from HRSentry’s poster kit as well. ) The Act applies to most private employers and the poster informs employees of their rights under the Act. Specifically exempted from the Act are federal, state, and local government employers as well as those in the agriculture, railway and airline industries.
If your organization is subject to this posting requirement, please note the following:
The poster must be displayed in at least an 11 x 17 inch format. If you cannot download to that size, there is an 8 1/2 X 11 inch version available for printing on two pieces of paper to be attached to one another to create the correct size. The poster is available in both color and in black and white.
If you normally post notices to employees regarding personnel rules or policies on an internet or intranet site, you will be required to post the NLRB’s notice or a link to the NLRB’s web site on those sites as well. The link must read, “Employee Rights under the National Labor Relations Act.” You do not have to notify employees via email, Twitter, or other electronic methods.
If 20% or more of your workforce speaks a specific foreign language as their first language, you must also display a poster in that language. If 20% or more of your workforce is made up of two or more groups of speakers of other languages, the poster must be displayed in the language of the largest group. For other groups it is the employer’s option to display posters in additional languages or to provide translated copies to those employees. Electronic notification is subject to the translation requirement as well. Translated versions of the posters and electronic links are available from the NLRB upon request.
The National Labor Relations Board (NLRB) has issued a final rule that will require covered employers to notify employees of their rights under the National Labor Relations Act (NLRA) as of November 14, 2011. A poster that meets the requirements will be available November 1, 2011.
How do you know if you are covered by the NLRA? Generally, the NLRA covers private sector employers who engage in interstate commerce. Excluded are public sectors employers as well as railway, airline and agricultural employers. You don’t have to have a union at your workplace to be covered by the NLRA. Note that such legally required posters are available via download or from your regional NLRA office so don’t ever pay for them. HRSentry® culls all federal and state legally required posters into a handy kit for subscribers. (Click on “Topic Modules”, then “Poster Kit” and all the posters you need, including those for your state, are listed for you.)
Employers covered by the NLRA will be required to post the notice where other workplace notices typically are posted. Employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the notice on those sites as well.
The notice, similar to one already required by the U.S. Department of Labor (DOL) for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and also to refrain from any of these activities. (Note that these federal contractors who already use the DOL poster will be considered to be in compliance and will not have to change posters.) The notice also provides examples of unlawful employer and union conduct and lets employees know how to contact the NLRB with questions or complaints.
In response to the 6500 comments the NLRB received during the 60-day comment period after the rule was proposed, some parts were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The poster will be available in several languages. A helpful Fact Sheet is available on the NLRB web site.
Article contributed by Kyle Lagunas, the HR Market Analyst at Sofware Advice:
HR is shifting its focus away from its traditional administrative functions and towards strategically growing and developing talent in the workforce. This trend—what analysts are calling strategic HR—is due largely in part to advancements in HR technology. The adoption of cloud-based software solutions has made this transition possible for organizations large and small. For leaders interested in developing a more valuable workforce, it is important to understand what, exactly, strategic HR is.
In broadening the scope beyond their traditional functions, HR professionals are taking on new roles as organizational advocates, talent coaches and workforce consultants. This hybrid of HR functionality oversees three core strategic HR functions:
Talent Management focuses on acquiring, on-boarding, and developing talent through employees’ entire life-cycles within organizations.
Learning Management focuses on managing the process of developing hard and soft skills, monitoring certifications, and rolling out training courses.
Workforce Management focuses on processes managers rely on to manage daily staffing tasks such as time tracking and shift scheduling so they can focus on big picture operational needs.
The adoption of web-based HR software has been a key driver in the development of strategic HR. Solutions focused on best practices involve both managers and employees in important processes like on-boarding and performance reviews. By automating administrative HR functions, organizations can take a strategic perspective on big-picture practices such as hiring better people and improving talent effectiveness.
Richard Vosburgh, VP of Talent & Organizational Effectiveness and Chief Talent Development Officer at KEMET Electronics, advocates the value of both the “essential and the transformational” functions of HR. Organizations that have mastered both the essential and transformational have seen a major impact on their organizational effectiveness. In 2007, a study conducted by The Hackett Group, HR Best Practices, found that organizations with “World Class HR” lowered labor costs, increased HR efficiency and drastically reduced turnover.
Impact of Strategic HR Graph
When taking the first steps towards implementing strategic HR, Vosburgh suggests leveraging people resources in your organization with what he calls “dual-hatting projects.” For example:
Assign your HR manager to develop an internal branding and company culture campaign.
Work closely with the controller to develop realistic and informed hiring and growth strategies.
Ask your hiring managers create a section in the application process specifically suited to their division.
Organizations that are serious about transitioning into strategic HR should be prepared for some growing pains. Safeguard yourself and your organization, and take time to put in your due diligence now. If you do your homework, research best practices and compare software to find what best fits your unique organization, you can ease this transition. Establishing an effective, strategic HR framework that can grow with your organization over time is no small task, but it’s undoubtedly worthwhile.
