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Maintaining I-9s: Top 10 Do’s and Don’ts

Posted by on April 14, 2011 at 6:19 pm.

For the past year, the Department of Homeland Security has cracked down on employers who violate the immigration and I-9 rules.  In this time of increased enforcement and stiff fines, making sure your organization has properly completed the I-9 Forms (and accompanying documentation) is paramount.

Maintaining I-9s: Top 10 Do’s and Don’ts

The Immigration Law specifies those who can work in the United States.  Hiring employees who are not eligible to work can result in civil or criminal penalties.  If, after hiring a new employee, it turns out that the employee is not eligible to work in this country, you cannot legally continue their employment.  As a starting point, please review these Top 10 Do’s and Don’ts for legal I-9 maintenance:

  1. Do require all new hires to complete and sign Section I of the I-9 Form on their first day of work but no later than three days after their first day of work.
  2. Don’t ask an applicant to complete an I-9 prior to making a job offer.  Applicants can allege that you used this information as discrimination against them.
  3. Do review each employee’s documents to make sure they are an acceptable document per the new version on the I-9’s list (on the back of the I-9 form) and that these documents appear genuine.  One document from List A or; one document from List B and one document from List C.
  4. Don’t ask new hires for any specific or particular document(s), or for more documents than the I-9 requires.  The employee must choose which documents to use, not the employer.
  5. Do ensure that you are using the current I-9 form (with the expiration date of 08/31/12).
  6. Don’t consider the expiration date of I-9 documentation when making any employment decisions.
  7. Do make and retain copies of all I-9 documentation.
  8. Don’t forget to keep a tickler file to follow-up on expired documents.
  9. Do keep I-9s and documentation after an employee is no longer working for your organization in a separate file.  These must be retained for three years after an employee’s hire date or one year after his/her termination date, whichever comes later.
  10. Don’t put the I-9 form and documentation in the employee’s personnel file.  This will protect your organization from discrimination claims.  Set up a separate filing system for the I-9 Forms and documentation.

If you need assistance in conducting an I-9 Audit or in setting up your I-9 files, please contact Mindi Brenner.

Top 10 Things Employers Do to Get Sued

Posted by on April 7, 2011 at 6:09 pm.
  1. “My Company is too small to be sued in a wage and hour class action suit!”
    1. Wage and Hour laws are governed by the FLSA which covers minimum wage, state labor laws, wage garnishments, record keeping requirements and overtime.
    2. All businesses, big or small, are governed by the Wage and Hour laws.
  2. “I can’t afford to hire an attorney to review my policies and give advice on what policies I should have.”
    1. Businesses do not need to hire an attorney to develop and/or implement their policies.
    2. An HR professional (at a 1/3 of the cost of an attorney) can assist your organization with the development of HR policies and procedures.
  3. “My employees don’t need me to tell them when to take a rest and meal break.  My employees are adults and know when they can take a break whenever they want.”
    1. Per the Wage and Hour law, employees’ are entitled to a half hour meal break for every work day of more than five hours worked.
    2. For every four-hour work period, employees’ are entitled to a paid ten-minute rest period.
  4. “My current Employee Handbook is fine….
    1. I found it on the internet;
    2. The previous company I worked for used it;
    3. I had my attorney review it when I founded the company in 2001;
    4. My friend owns a business in the same industry and gave me a copy of her handbook.”
  5. Employers hold the employee’s final paycheck until he/she turns in the company cell phone and/or uniform.  After all, it was agreed to in writing to turn them in.  Seems reasonable, perfectly fair especially since you have an agreement.
    1. Final paycheck deadlines depend on whether the employee was terminated, laid off, quit with or without at least 72 hours notice.
    2. Terminated or laid off employees are entitled to final wages upon last day.
    3. Quit with fewer than 72 hours notice, the employer has 72 hours after when notice was given.
  6. Don’t waste time training front-line supervisors on employment laws.  After all, that is what the company pays the HR people to handle.
    1. Supervisors are the eyes and ears of the organization.  Training this level is your first line of protection from lawsuits.
    2. Supervisors can be named individually in a lawsuit.  They need to be informed.
  7. Congratulate the employee who passes the “90-day” probationary period.  Let him/her know that he/she is now a permanentemployee.
    1. Under Nevada Law, the employment relationship is presumed to be “at-will”.
    2. Either party can terminate the employment relationship with or without a reason.
    3. Using the term permanent can imply the employer no longer has a right to terminate the employee without just cause.
    4. A better term to use is regular employee.
  8. Pay everyone a salary.  Payroll is so much easier without having to calculate overtime.
    1. Under both federal and state laws, certain employees are exempt from overtime requirements and some aren’t.
    2. Other employees who don’t qualify for an exemption are entitled to overtime pay, and can’t agree to forego overtime pay in exchange for receiving a salary.
  9. During a down-sizing, layoff the older employee first; he/she is going to retire soon anyway!
    1. This can be viewed as a discrimination issue!
    2. Plan layoffs by reviewing the employees who are being considered for layoff carefully.
    3. Decide if you plan on layoffs based on performance, seniority or a combination of the two.
  10. I am too busy to think about employee law issues.  I will deal with it when, and if, something happens.
    1. Don’t be reactive.  This can be costly as compared to being proactive.