Keeping up with changes in the law is important for all employers in order to avoid liability and help maintain good employee relations. Recent changes to federal and Missouri immigration law and to the Family and Medical Leave Act rules have recently taken effect or will shortly.
Immigration: New I-9 Form, Missouri E-Verify Law and Non-Matching Social Security Numbers
Form I-9
Every employer is required by law to verify the eligibility of each new employee it hires and re-verify the eligibility of certain current employees. This includes hiring seasonal workers or even individuals employed to perform work in a private home on a regular basis (such as housekeeping). This verification is done by properly preparing an Employment Eligibility Verification Form (Form I-9). Section 1 of the I-9 Form (providing basic employee information) must be completed at the time of hire—when the employee begins performing work. Section 2 (document verification by the employer) must be completed within 3 business days of the hire. The employer is required to retain this form for one year after the termination of the employee’s employment or three (3) years from the date of hire, whichever is later.
Employers are also required to re-verify the employment eligibility of employees in certain circumstances. The employer must re-verify in case of rehiring any previous employee. Employers will also need to re-verify the employment eligibility for any current employee who has listed a work authorization expiration date on the I-9 Form or who presented documents showing a work authorization expiration date. This re-verification can be done by completing Section 3 on the original I-9 Form or completing a new
Form I-9.
All employers should be aware that effective April 3, 2009, a new I-9 Form is required to be used for each new hire and for re-verification of any employee with an expiring employment authorization. This new form reflects certain rule changes from the U.S. Citizenship and Immigration Services restricting the list of acceptable documents in an effort to aid employers in verifying valid forms. There are a number of changes as to the particular documents which can be used to verify employment eligibility (including a new requirement that all documents must now be current and cannot be expired), as well as a variety of technical changes, so employers should review the new form carefully. The new Form I-9, as released on February 2, 2009, can be accessed at .
Missouri E-Verify Form
Missouri also passed a new law effective January 1, 2009 which imposes new penalties on employers who “knowingly” employ illegal immigrants, including revocation of business licenses. All public employers are required to participate in the federal electronic work authorization verification program (“E-Verify”) discussed below. Private employers are not required to participate unless they receive a grant or contract in excess of $5,000 from Missouri or any Missouri governmental entity. Ordinary private employers are not required to participate in E-Verify; however, those that do so will have a defense against any claims that they “knowingly” employed illegal immigrants.
E-Verify was created to provide employers an automated, online link to federal databases to help employers determine eligibility of new hires, thereby protecting jobs for authorized workers, improving wage and tax reporting, and helping employers maintain a legal workforce. The employer must complete the I-9 Form as described above and submit the information online. If the employer receives a tentative non-confirmation response, the participating employer must take additional steps to verify the eligibility of the new hires. Employers must be careful, however: a non-confirmation response does not mean that the employee is not authorized, but only that the database cannot confirm the employee’s employment eligibility. If the employer terminates the employee’s status based solely on the non-confirmation response, it may risk violating anti-discrimination laws. Additional information on the electronic work authorization verification program can be obtained by visiting the Social Security Administration website related to its e-verification program at http://www.ssa.gov/employer/ssnv.htm.
Non-Matching Social Security Numbers
Employers should also be aware that there is significant ongoing uncertainty regarding procedures following receipt of a “No-Match letter” from the Social Security Administration. As discussed in a previous issue of E-Lawlines, these No-Match letters are issued to the employer by the Social Security Administration (“SSA”) when an employee’s W-2 does not match the SSA’s records. In August of 2007, the Department of Homeland Security (“DHS”) issued a new “No-Match rule” which generally required employers to follow a specific protocol or risk being treated as knowingly employing an unauthorized employee. This rule was placed on hold after a California court enjoined DHS from implementing the rule. Currently, the SSA and DHS take the stance that an employer should take “reasonable steps” to resolve the mismatch and apply these steps uniformly to all employees referenced in the “No-Match letter.” Litigation is still pending, and, moreover, there is some indication that the Obama administration will be scrapping or significantly revamping the rule, so employers are advised to keep abreast of this area of developing law.
For additional information and overview of the federal immigration requirements applicable to employers, employers should also review the Handbook for Employers (Publication M-274). A new handbook is expected to be published in the upcoming months. The current handbook can be accessed at http://www.uscis.gov/files/nativedocuments/m-274.pdf.
Family and Medical Leave Act
Private employers that employ at least fifty (50) employees within 75 miles of the worksite generally are covered by the federal Family and Medical Leave Act (FMLA). In order to be eligible, employees of those covered employers must have worked for the employer for at least twelve months and for at least 1,250 hours during the immediately preceding twelve months. Generally speaking, eligible employees are entitled to twelve weeks of unpaid leave during any twelve month period (1) for the birth of a child, (2) to place a child into adoption or foster care, (3) to care for an immediate family member with a serious health condition, or (4) to care for the employee’s own serious health condition. Those employers unfamiliar with the basic requirements of the FMLA are advised to review materials prepared by the Department of Labor to provide guidance to employers in their compliance efforts. These materials can be found at http://www.dol.gov/compliance/laws/comp-fmla.htm.
Employers generally familiar with the FMLA should nonetheless be aware that new rules to the FMLA became effective January 16, 2009. Among the changes are the following:
- Serious Health Condition. The definition of “Serious Health Condition” was clarified to require that an individual must make 2 visits to the healthcare provider within 30 days of the onset of the incapacity and that the first of the two visits must occur within 7 days of the onset of incapacity.
- Intermittent Leave. Accounting for intermittent leave can be done in the smallest increment that the employer uses for other types of leave, but not greater than 1 hour.
- Substitution of Paid Leave. Employers must allow employees to take concurrent paid leave, and the Department of Labor will treat all types of leave the same. The employee electing to use the paid leave must follow the same terms and conditions of the employer’s policy as apply to other employees. For example, if other employees may not take less than a full day of sick leave, then the employer may require the employee taking concurrent FMLA time and sick time to take a full day as well.
- Employer Notice Obligations. The regulations regarding employer notices have been consolidated into one section. The employer must provide a general notice (which must be posted and either put in an employee handbook or given upon hire), an eligibility notice, a rights and responsibilities notice, and a designation notice. The new rule extends the time for employers to provide the eligibility notice and the rights and responsibilities notice to five (5) business days after the employer learns that the employee wishes to take FMLA leave, and it extends the time for employers to provide the designation notice to five (5) business days after the employer learns whether the leave is FMLA qualifying.
- Employee Notice Obligations. The new rules tighten the employee notice obligations and require that the employee follow usual and customary call-in procedures for reporting an absence, absent usual circumstances. This should help minimize disruptions to the employer.
- Medical Certification. If the employer deems a medical certification incomplete, the employer must specify in writing what information is lacking and give the employee seven (7) calendar days to cure the deficiency. Employers may contact the employee’s health care provider directly for clarification or authentication of the medical certification. The individual doing the contacting may be a health care provider, human resource professional, leave administrator or management official, but in no case may it be the employee’s direct supervisor.
- Military Family Leave. FMLA leave is expanded to 26 weeks in a single 12 month period for family members to care for service members with a serious illness or injury incurred in the line of active duty. Additionally, a family member may take FMLA leave for any “qualified exigency” arising out of the fact that a covered military member is on active duty or is called to active duty. These exigencies include (1) short notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities as agreed to by the employer and employee.
Although extensive, the above changes are not exhaustive, and employers are advised to visit the U.S. Department of Labor website listed above to review these and other changes to the FMLA rules.