USCIS Releases New Form I-9

As promised, the United States Citizen and Immigration Services (USCIS) has published a new Form I-9. Employers may continue to use the current Form I-9 through October 31, 2023, but must implement the new form after that date or face penalties. Please see Lake Effect's prior blog for detailed information about the specific revisions made to Form I-9. USCIS has also provided new instructions for the revised Form I-9 and updated its Handbook for Employers with further guidance for completing the new form.

Section 4.0 of the USCIS Handbook for Employers sets forth detailed requirements for employer review and verification of acceptable I-9 documentation. Section 4.5 confirms that employers who are participants in good standing in E-Verify may utilize an optional procedure for remote examination of I-9 documents as an alternative to the in-person physical examination historically required of all employers (except for during the time period covered by the COVID-19 flexibilities). If an E-Verify participant employer uses the alternative procedure, it must offer the option to all employees. Note that employers who do not participate in E-Verify are not eligible to use the remote examination procedures and must continue to inspect acceptable documents in-person, including in-person verification by an authorized representative for remote employees. 

If you would like assistance or guidance in completing new Form I-9s, complying with the Form I-9 identification or retention requirements, or conducting internal I-9 audits, please contact Lake Effect at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect is here to answer all your questions about employment laws, regulations, and new agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Expect Revised I-9 Form August 1, 2023

The U.S. Citizenship and Immigration Services (USCIS) is expected to publish a revised version of Form I-9, Employment Eligibility Verification, on August 1, 2023. Employers must begin using the new version of the Form I-9 by November 1, 2023. According to the USCIS announcement, the revised Form I-9 will:

  • Reduce Sections 1 & 2 to a single-sided sheet;
  • Be designed to be filled in as a form on tablets and mobile devices;
  • Move the Section 1 Preparer/Translator Certification to a standalone supplement to be provided to employees when necessary;
  • Move Section 3 Reverification and Rehire to a standalone supplement to be printed if necessary;
  • Revise the Lists of Acceptable Documents page to include some acceptable receipts and provide guidance and links to information on automatic extensions of employment authorization documentation;
  • Reduce Form instructions to 8 pages; and
  • Include a checkbox allowing employers who are E-Verify participants in good standing to indicate that they remotely examined identity and employment authorization documents instead of reviewing documents in person, under a specific alternative procedure authorized by USCIS.

USCIS also noted that employer-participants in E-Verify who created an E-Verify case for an employee and performed a remote examination of that employee's Form I–9 documentation during the COVID–19 flexibilities (between March 20, 2020 and July 31, 2023) can use the new alternative procedure to satisfy the required physical examination of that employee's documents by August 30, 2023. Please see Lake Effect's prior blog on the physical examination deadline and requirements. USCIS also confirmed that employers do not need to complete the new Form I–9 for current employees who already have a properly completed Form I–9 on file unless reverification applies.

Employers can expect further guidance on the new Form I-9 and inspection procedures when the new form is released on August 1, 2023. Lake Effect HR & Law will continue to follow this issue and will provide updates as needed. If you would like assistance or guidance in complying with the Form I-9 identification or retention requirements or internal I-9 audits, please contact Lake Effect at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect is here to answer all your questions about employment laws, regulations, and new agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Employers Beware: Your Noncompete May Violate Federal Law

NLRB General Counsel: Most Noncompete Agreements Violate the NLRA

Many employers require employees to sign noncompete agreements before, during, or upon separation from employment in an effort to prevent direct competition and protect business interests. This long-standing practice faces increasing resistance from state legislatures, as well as federal agencies like the Federal Trade Commission. The National Labor Relations Board (NLRB) appears poised to join the effort to invalidate such agreements. According to Memorandum GC 23-08 issued by NLRB General Counsel Jennifer Abruzzo on May 30, 2023, most noncompete agreements violate employees’ rights under Section 7 of the National Labor Relations Act (NLRA) and should be deemed unlawful. The guidance applies to both union and nonunion workplaces.

Section 7 of the NLRA protects employees’ right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Recent NLRB decisions confirm that employees cannot waive these rights in individual contracts. (See Lake Effect’s prior blog on another NLRB decision and guidance on this issue.)

The General Counsel explains that most noncompete agreements threaten employees’ Section 7 rights because they:

  • Chill employees from concertedly threatening to and/or carrying out threats to resign in order to secure better working conditions.
  • Chill employees from concertedly seeking or accepting employment with a local competitor to obtain better working conditions.
  • Chill employees from soliciting co-workers to go to work for a local competitor as part of a broader course of protected activity.
  • Chill employees from seeking employment to specifically engage in protected activity with other workers at an employer’s workplace.

The Memorandum specifies that an employer’s desire to avoid competition does not justify infringing on a former employees’ Section 7 rights. An employer’s interests in retaining employees and/or protecting investments in employee training are likewise insufficient to excuse the chilling effects of broad noncompete provisions.

General Counsel Abruzzo does narrow the scope of her prohibition in two ways. She concedes that noncompete agreements that restrict only an individual's managerial or ownership interests in a competing business may be lawful under the NLRA. She also notes that employers’ legitimate business interest in protecting proprietary or trade secret information can be addressed by narrowly tailored workplace confidentiality agreements that protect those interests. These specific confidentiality agreements thus continue to be lawful under federal labor law.

The NLRB General Counsel’s Memorandum is not binding law, but it directs field offices to scrutinize employee noncompete agreements and seek relief for employees subject to an “overbroad non-compete provision.” Considering this guidance, employers should anticipate increasing challenges to noncompete agreements and should carefully review employment agreements containing any noncompetition provisions. They should also review confidentiality agreements to ensure that they are narrowly tailored enough to withstand scrutiny. Your partners at Lake Effect can help you evaluate your agreements and monitor NLRB enforcement activities.

Lake Effect is here to answer all your questions about employment laws, regulations, and agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Remote Verification of Form I-9 Documents ending July 31, 2023

Employers need to inspect remotely verified Form I-9 documents in-person by August 30, 2023

As mentioned in previous blogs, employers with a remote workforce have been allowed to verify acceptable Form I-9 documents virtually rather than in person, dating back to the start of the pandemic in March 2020. The Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) announced that the temporary option to review acceptable documents remotely will end effective July 31, 2023. This reversion to pre-pandemic procedures for I-9 verification will require time-sensitive actions, and employers need to start planning now.

For employees hired beginning March 2020: If an employer completed page 2 of the I-9 by virtually verifying the documents establishing identity and employment authorization, they will need to have the employee bring in their documents so they can be verified in person. In-person verification needs to be completed for all impacted I-9 forms by August 30, 2023. When the employer’s representative inspects the documents in person, they should document the following in the “Additional Information” box on page 2:

  • notation of “documents physical inspected”
  • the date of inspection
  • initials of the individual who completed the inspection

It is important to note that employees may use the same documents that they had presented virtually, or they may use other accepted documents as allowed by the DHS and ICE. If the employee provides different documentation, the new information should be listed in the appropriate List A or List B and List C columns, with notes indicating the changes in the “Additional Information” box.
As of July 31, 2023, employers will need to return to the process of verifying forms of identification for the Form I-9 in person. Although DHS is currently reviewing options for possible remote verification of documents in the future, no such changes have been finalized or announced. Lake Effect HR & Law will continue to follow this issue and will provide updates as needed.

If you would like assistance or guidance in complying with the Form I-9 identification requirements or internal I-9 audits, please contact Lake Effect at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect is here to answer all your questions about employment laws, regulations, and new agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Cautions Employers That AI Selection Tools Can Have Unlawful Disparate Impact

On May 18, 2023, the EEOC issued a technical assistance guide on the use of artificial intelligence tools in employment selection procedures under Title VII, which is the federal anti-discrimination law. The guidance recognizes employers’ increasing use of AI-developed algorithmic decision-making tools in hiring, promotion, and firing. Such tools may include software designed for resume-screening, hiring, video interviewing, and employee monitoring. The EEOC guidance confirms that these types of tools, like more traditional employment decision-making procedures, must be monitored to ensure that they do not disproportionately exclude applicants or current employees based on a protected class. This would constitute unlawful “disparate impact” discrimination under Title VII unless the employer shows that the use of the tool and the use of a protected characteristic in the decision-making process is “job related and consistent with business necessity.” The EEOC specifically notes:

  • An employer may be responsible under Title VII for the impact of algorithmic decision-making tools even if the tools are designed or administered by a third party. Therefore, employers should select software vendors carefully and assess what steps have been or must be taken to evaluate the selection rates for individuals in protected categories.
  • In assessing disparate impact, the EEOC has historically relied on the general rule that the selection rate for one group is “substantially” different from that of another group if the ratio of former to latter is less than four-fifths or 80%. The EEOC will apply the same rule of thumb to AI developed selection tools. However, the guidance cautions that the four-fifths rule is not dispositive with respect to establishing or disproving disparate impact under Title VII.
  • The EEOC guidance encourages employers to conduct self-analyses on an ongoing basis to assess whether a selection tool has disproportionately negative effects on any protected group. Employers can then take proactive steps to revise or change the tool and avoid violating Title VII.

Lake Effect is here to answer all of your questions about employment laws, regulations, and new agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

NLRB Scrutiny Requires Review of Employee Agreements

Based upon the NLRB’s recent decision in McLaren Macomb (February 23, 2023) and related General Counsel Memorandum 23-05 (March 22, 2023), employers (whether unionized or not) should review severance and other employment agreements containing confidentiality, non-disclosure, or non-disparagement provisions to ensure compliance with the Board’s restrictive new standards.

In McLaren Macomb, the NLRB examined severance agreements offered to 11 employees who were permanently furloughed from a Michigan hospital. The NLRB concluded that offering employees severance agreements that contained broad confidentiality, non-disclosure, and non-disparagement provisions unlawfully interfered with their Section 7 rights under the National Labor Relations Act (NLRA). The Board reasoned that such provisions could limit employees’ rights to communicate with other employees, union representatives, and/or NLRB agents regarding workplace issues and labor disputes, rights which are central to the protections of the NLRA.

In General Counsel Memorandum 23-05, NLRB General Counsel Abruzzo provided additional guidance on the McLaren Macomb decision. The General Counsel’s memo confirmed that whether an employee actually signs a severance agreement containing overly broad confidentiality and/or non-disparagement provisions is irrelevant. The employer violates the NLRA simply by presenting employees with such an agreement. In addition, the memo clarified that the McLaren Macomb decision is retroactive and thus applies to agreements presented to employees before February 2023, although such actions are normally subject to a 6-month statute of limitations. The memo also states that the McLaren Macomb standard is not limited to provisions contained in severance agreements, but rather applies to any employer agreement or communication that implicates employees’ Section 7 rights. These would likely include free-standing confidentiality and non-disclosure agreements and could even include non-compete or non-solicit provisions in certain scenarios.

On the heels of this recent NLRB activity, employers are well-advised to work with employment counsel to review separation agreements, as well as other free-standing agreements and communications with employees. Employers should carefully consider whether confidentiality, non-disclosure, or non-disparagement provisions are truly necessary to protect their business interests. If deemed necessary, they will need to be extremely narrowly tailored to meet the NLRB’s stringent new standard. Your partners at Lake Effect are ready to help you with this important review process.

Lake Effect is here to answer your questions about compliance with federal, state, and local laws as they related to all employment agreements. We continue to monitor important legal and HR developments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Coaching Employees Through Interpersonal Differences

Since the pandemic, many employers have experienced a rise in the number of interpersonal disputes among employees. These conflicts may reflect long-standing friction that went dormant during COVID, employees out-of-practice at making small talk by the proverbial water cooler, or employees no longer willing to tolerate an aggravating co-worker or demanding boss. Lake Effect has helped many organizations address these employee relations issues quickly and effectively using the Everything DiSC® methodology.

Everything DiSC is a versatile tool that can be used in employee and executive coaching sessions, mediation, and group training to break down friction among coworkers, strengthen teams, and professionally develop individuals. The personalized Everything DiSC Workplace Profile® that each employee receives provides a great starting point to coach employees through challenging situations, transitions, and pivots. Even in the face of conflict and stress, employees who know their own DiSC style and those of their co-workers can modify their behavior and approach to communicate more effectively and productively with others. Very quickly, the DiSC framework helps your employees improve teamwork, communication, and productivity by developing a common communication language in the workplace.

In the post-COVID world, employees are returning to the workplace with new expectations and aspirations. By providing them with Everything DiSC assessment and training, you are providing them with the resources to improve their workplace interactions and overall experience. You also demonstrate your commitment to their future and professional development. Contact your partners at Lake Effect to help you maximize your workplace potential.

Lake Effect can assist with all of your employee relations issues and answer your questions about federal and state employment laws and HR best practices. We continue to monitor important legal and HR developments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Expanded  Workplace Protections for Pregnant and Nursing Employees

Employers should review their policies and practices regarding nursing and pregnant employees in light of the recently signed Consolidated Appropriations Act, 2023 signed into law at the end of 2022.

Effective June 27, 2023, employers with 15 or more employees will have expanded obligations under the PWFA with respect to employees and applicants experiencing limitations due to pregnancy, childbirth, and related conditions. Effectively overruling some prior court decisions, the PWFA specifies that employees affected by “pregnancy, childbirth, and related conditions,” are entitled to processes, accommodations, and protections under the Americans with Disabilities Act (ADA).

Under the PWFA, employers must engage in an interactive process with affected employees and applicants and provide reasonable accommodations even for a temporary period (unless those accommodations would cause an undue hardship). The terms “undue hardship” and “interactive process” have the same definitions as they do in the ADA.

Notably, an employer may not require paid or unpaid leave as an accommodation if another reasonable accommodation can be provided. The EEOC plans to issue regulations by the end of the 2023 clarifying other types of reasonable accommodations under the PWFA. PWFA enforcement procedures mirror those of other Title VII proceedings, meaning affected employees or applicants can file charges for alleged violations with the EEOC or state or local fair employment agencies. An employer is prohibited from taking any adverse action or engaging in retaliation against an employee who attempts to use this law.

Effective immediately, employers covered by the Fair Labor Standards Act (FLSA) must provide reasonable break time and a private space (that is not a bathroom) for exempt and non-exempt employees to express breastmilk. This amendment supplements the 2010 Break Time for Mothers law, which applied only to non-exempt employees. The new law also clarifies that a pumping break need not be paid, unless it is taken concurrently with a paid break, or the employee is not actually relieved from duty. Like the 2010 law, the PUMP Act exempts employers with fewer than 50 employees, if the employer can show that the accommodation causes an undue hardship to the business.

Enforcement procedures under the PUMP Act are somewhat unique. If an employee believes their PUMP Act rights have been violated, they must notify their employer, who then has 10 days to remedy the alleged violation before any additional legal action can be taken. If the alleged violation is not sufficiently addressed, the employee may pursue all remedies available under the FLSA, including unpaid wages, reinstatement, and liquidated damages.

Lake Effect is here to answer all of your questions about current and newly enacted employment laws and regulations. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253. 

Commit to a Healthy Organization for 2023; Conduct an HR Check-Up

It’s the start of a new year when many of us commit to personal goals and healthy resolutions. For employers, the new year presents a valuable opportunity to conduct an HR check-up, evaluating and updating HR policies and practices to ensure legal compliance while attracting and retaining a diverse, engaged, and talented workforce. Consider the following questions as you assess the HR health of your organization:

  • When did you last update your employee handbook? Many federal and state employment laws and regulations have evolved in recent years, and your handbook policies may need updating to ensure compliance with current laws.
  • Do you have partial or fully remote employees? Have you implemented policies and procedures addressing remote work? Remote work policies should address such issues as schedule expectations, data security and confidentiality, reimbursement for home office expenses, and tracking and recording work time. Employers should also consider specific practices to ensure remote workers feel included, engaged, and connected to on-site activities and colleagues.
  • Do you have remote employees working in other states? Employers should review the applicable employment laws in any city and state where employees are living and performing work for the organization. Standard HR policies and practices may need to be customized and/or supplemented to reflect legal requirements in those local areas.
  • Are you taking deliberate steps to retain your key employees and rising stars? As a new year begins, employees may be considering their career goals and future opportunities within the organization. Providing practical and engaging opportunities for professional growth and development can help your organization retain and maximize its talented workforce.
  • What steps are you taking to ensure that all applicants and employees are attracted to, welcomed within, and included in your workplace? Consider conducting an equity audit of your job postings, position descriptions, and general HR policies and procedures with the goal of removing unnecessary barriers to employment and advancement. Create a workplace culture that invites, values, and encourages employees of all backgrounds and experiences to perform their best and contribute to your team’s success.

These are just a few questions to consider as you assess your organization’s HR health moving into 2023. Contact your partners at Lake Effect HR & Law to help evaluate all of your HR policies and practices and ensure that you stay in good shape for the coming year.

Lake Effect is here to answer your questions about federal and state employment laws and HR best practices. We continue to monitor important legal and HR developments that affect employers. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

LakeEffectWhite-footer2

© 2023 Lake Effect HR & Law, LLC