Event Archive

Employment Law Update for 2019

   

Contact Info

Cruickshank & Alaniz

Brett Holubeck

BHolubeck@a-c-law.com

20333 State Hwy 249, Ste. 272
Houston, TX 77070
(281) 833-2200

NOVATIME TECHNOLOGY, INC.

Kyle Glave, Sales Director

Kyle.Glave@NOVAtime.com

9680 Haven Ave #200
Rancho Cucamonga, CA 91765
(909) 895-8100 x-8100

Questions & Answers:

Q1

I am in California. We have been training supervisors due to AB1825 every 2 years. For supervisors who were trained in 2018, do we still need to train them again in 2019 due to the new regulation that requires supervisors be trained in 2019?

A1

No, you will not need to do extra training this year for these supervisors that had training last year. The new statute lowered the employee threshold. The prior statute required employers with 50 employees to provide training, but now employers with at least 5 employees must provide training. You will need to provide at least 1 hour of training to your nonsupervisory employees.

Q2

Any special rules for keeping electronic storage of I-9's?

A2

There are a lot of rules regarding retaining I-9’s electronically. You can find most of them here: https://www.uscis.gov/i-9-central/103-electronic-retention-form-i-9 Essentially, you need to have reasonable controls to ensure that the records cannot be accidentally destroyed or altered, a quality assurance program that includes periodic checks of the I-9’s and the system itself, and an indexing system.

Q3

I have one question regarding Michigan Sick Pay law. If employer has more than 50 employees in the US but only 20 actually working in the State, do they still have to provide Sick Leave to the employees working in Michigan?

A3

The statute defines employer as a business with 50 or more individuals. It looks like the employees outside of Michigan would count towards the total from the language in the statute. It may become clearer once there are more guidelines that are put out by the state.

Q4

Are you required to update any expired documents used to verify legal work status, such as those for citizens? is the require to update the documents only for those who are foreign and receive authorization to work in the US?

A4

You do not update expired documents for citizens or permanent residents/green card holders. The documents that they present must be unexpired when you complete the I-9, but you do not update them. Employers are required to reverify employees that have an employment authorization document (DACA, and employees that are on a visa (H-1B, TN, L1, etc.).

Q5

Do we have to worry about the mismatch letters if we use E-Verify?

A5

You are much less likely to receive a mismatch letter if you use E-Verify or Social Security Verification, but it is still possible.

Q6

Are these letters generated from an audit? What triggers the SSA to send these letters?

A6

They are caused because the W-2 for an employee contains a name and Social Security Number that does not match the records at the Social Security Administration (SSA). It is not caused by an onsite visit, but SSA reviewing its records. The SSA will start to send them out in the spring. Using the Social Security Number Verification Service is one way to avoid errors.

Q7

Please explain the joint employer issue in relation to staffing agency and employer where the temp is assigned. Thanks.

A7

Under the joint employer concept two companies have control (either actual or potential) over an employee’s activity and each is liable for any legal claim that the employee raises (worker’s compensation, wage and hour, discrimination, etc.). The less control that a company has over its staffing company workers (cannot direct what they are going to do, fire them, discipline them, supervise them, etc.), then the less likely it is that the employer will be liable for any claim from the staffing company employee. Most frequently the issue arises with a sub-contractor and general contractor in the construction industry or when the staffing company goes bankrupt and cannot satisfy any claims that an employee makes against the staffing company or subcontractor.

Q8

What is the statute of limitation for retaliation lawsuit/ EEO whistleblower reporting?

A8

Claims under Title VII, the Americans with Disabilities Act and the Age Discrimination in Employment Act must be filed within 300 days with the EEOC. Plaintiffs have 2 years to file FMLA claims, 3 years for claims related to the Fair Labor Standards Act, and 4 years for claims under Section 1981. Each state also has different requirements.

Q9

If using SS Verification offered by Social Security and have a mismatch do you follow the same timeframe for resolution?

A9

I would recommend giving the employee 90-120 days to correct the problem if you have an issue with the Social Security Verification system.

Q10

Do you recommend keeping copies of I-9 documents?

A10

This depends on your preferences. I generally recommend keeping them for most employers. You do need to pay close attention to the documents to ensure that there are no obvious errors that invalidate the documents (ex. California is misspelled), which could lead to increased fines if a notice of inspection occurs.

Q11

even though an employee doesn't have to present social security for i-9; is it appropriate to review that specifically to use for their name on employment file

A11

If you are concerned about incorrect Social Security numbers, then it is a good practice to use the Social Security Verification system. You can only use it for tax purposes and cannot take an adverse employment action against an employee solely because of the mismatch.

Q12

Will the new paid family leave act apply only apply to immediate family or to the employee themselves?

A12

The proposals are still ongoing. The Republican plan has tended to be limited to paid parental leave. The Democratic plans have generally mirrored the FMLA.

Q13

Do you have to re-enter their I-9 information on the website or just get an updated card and complete the re-verification section on the I-9 form?

A13

If an employee’s employment authorization card is expired, then you request a new card from them. You then complete the reverification part with the new information or complete a new I-9 for them if needed.

Q14

If an employee leaves and is rehired, how long do you have to keep the OLD I-9 from prior employment if we still have that OLD I-9 on file when they return. Do we base it on original hire/term date, or do we need to keep it as long as they are still employed with the second employment?

A14

The rule for retaining I-9’s is that you keep them for 3 years from the date of hire or 1 year after the date of termination whichever is longer. Never destroy i-9s for current employees. For example , if an employee starts work on March 3, 2019 and quits on March 10, 2019, then you will keep the I-9 until March 4, 2022. If the employee begins on April 1, 2019 and quits on June 11, 2029, then you will keep the I-9 until June 12, 2030. You can use an old I-9 for an employee if you rehire them within 3 years from the date that their I-9 was previously done. In section 3, you would put the employee’s rehire date, any name changes, and sign and date the form. If the old I-9 indicates that the employee’s employment authorization expired, then you have to reverify their employment authorization. You also have the option of completing a new I-9 for the employee.

Q15

How often do you recommend an I9 self-audit?

A15

It depends on your turnover and the number of employees you have. For employers with a high turnover and large number of employees you should do it every 1-2 years to try to minimize any mistakes in the I-9’s before an employee leaves mistakes are more difficult to correct for former employees. Most employers can benefit from doing an I-9 audit every 2-3 years.

Q16

Do we have to have a different drug free workplace policy for Colorado?

A16

You can have a drug free workplace policy, but you have to allow medical marijuana users to use marijuana outside of work. You can prohibit them from using medical marijuana at work. You also cannot terminate the employee or take adverse action against them because they test positive for marijuana. You do not have to allow them to be impaired at work. There are some exemptions to this such as for employees that are subject to Department of Transportation regulations.

Q17

Will the SSA be connected to other agencies for enforcement of the mismatch letters? We used to throw them away because there was no one to enforce them.

A17

Responding to these letters is now mandatory and a failure to correct the SSN could result in penalties or fines. You need to take some action (giving employees an opportunity to correct any SSN error) when you receive these letters. Immigration officials could interpret your failure to act as you having constructive knowledge that some of your employees were unauthorized to work.