New I-9 Forms

For the first time in many years, the I-9 form has received substantive changes to both content and layout.  The United States Department of Homeland Security announced that a new I-9 Form is available for immediate use by employers. 

Am I required to fill out I-9 forms for my employees?
All employers are required to fill out I-9 forms regardless of their size or industry. 

Are there any exceptions for small employers or specific industries?
No.  All employers are required to complete I-9 forms for all employees.

Where can I locate the new I-9 forms?
New I-9 forms can be found here along with information regarding the forms and changes.

Do we have to use the new I-9 Form?
While all employers may use the new I-9 forms immediately, they are not required to do so until May 7, 2013.  As of May 7, 2013, employers who fail to use the new forms may be subject to civil money penalties. 

What are the main changes?
While none of the changes will cause major change in an employer's current policies or practices, the new I-9 Form has been expanded from one page to two pages and includes expanded instructions.  In addition, the new form includes fields for an e-mail address, phone number, and foreign passport in Section 1. 

What should I do if I haven't filled out I-9 forms for my employees, or if we have kept I-9s but have not completed them correctly?
If your company has not complied with I-9 requirements, you should immediately consult with your attorney to determine the best way to come into compliance and implement compliant policies for future compliance. 

Should I copy an employee's identification?
The I-9 instructions do not mandate that an employer should or should not keep copies of an employee's identification.  However, an employer should make sure that it implements a uniform policy.  In other words, if an employer wishes to keep copies of employee documents, then it should keep copies of employee documents for all employees, not just some employees. 

How long do I need to retain copies of I-9 forms?
Employers must retain copies of I-9 forms for either three years, or one year after termination of the employee, whichever is longest.  In other words, if you have an employee who works for you for one year, you must keep the I-9 for at least three total years.  But if you have an employee who works for you for ten years, you must keep the I-9 for eleven years (one year after termination of the employee). 

What are the penalties if I fail to keep I-9s?
Employers may be subject to a variety of fines and penalties if they fail to correctly fill out and keep I-9 forms.  These fines and penalties ranges from $110.00 to $13,500.00 depending on the type of violation, whether the employer is a repeat offender, and other factors. 

Action Items:
Moving forward, employers should:

1. Review their current policies relating to I-9 forms to ensure that are implemented in a uniform and non-discriminatory manner;
2. Begin using the new I-9 forms immediately; and
3. Should consult with an attorney if the employer finds non-compliant practices in past practices to ensure future compliance.

Please contact us if you have questions or concerns regarding the foregoing matters.

Highlights: Interns, FMLA Regs, Minimum Wage

Today we want to hit a few of the highlights that have occurred in the employment law arena over the last couple of weeks.  While there are many stories that have come out, the most compelling to me include interns, the new Family and Medical Leave Act (FMLA) regulations, and the President's comments on minimum wage. 

Interns: 
The Wall Street Journal ran an interesting video entitled "Fashion Week: The Secret Life of Interns" (see the video here).  It was an interesting enough video for those that like these kinds of things, but it raises some important legal questions for employers. The story has is about unpaid interns who work like crazy during fashion week. 

The question the story poses for employers is whether these interns really qualify? The Department of Labor Wage & Hour Division (WHD) has set forth six (6) requirements that must be met for employees to be considered interns and therefore avoid the Fair Labor Standards Act's (FLSA) minimum wage and overtime requirements.  The internship must be similar to training which would be given in an educational environment and for the benefit of the intern.  The intern must not displace regular employees and must not be entitled to a job at the conclusion of the internship.  Finally, the employer that provides the training should derive no immediate advantage from the activities of the intern (and indeed may be impeded by the intern) and the employer and intern must understand that the intern is not entitled to wages. 

FMLA Regulations:
The WHD issued final regulations relating to military leave and airline flight crews. 

Military Leave Provisions:
The regulations now provide an extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty.  They also provide provide for military caregiver leave to cover serious injury or illnesses that result from the aggravation of an injury or illness during military service of a preexisting condition. This applies to both current servicemembers and veterans.  Qualifying exigency leave has been extended to eligible employees with covered family members serving in the Regular Armed Forces.  The regulations now include a foreign deployment requirement for qualifying exigency leave for deployment of all servicemembers (National Guard, Researves, and Regular Armed Forces).  And there is now a flexible, three-part definition of serious injury or illness of a veteran has been established.

Airline Flight Crews:
Two major changes have occurred relating to airline crews. First, special hours of service eligibility requirements for airline flight crew employees has been updated. Second, specific provisions relating to calculating the amount of FMLA leave used by airline flight crew employees.

Minimum Wage: 
President Obama made mention of raising the minimum wage in the State of the Union address and has continued to reiterate the same message since.  The platform presented included calls to raise the minimum wage to $9.00 per hour.  Regardless of the political discussion on whether to raise the minimum wage, the key for employers is to know what the requirements are for their business.  Employers are reminded that many states have different minimum wages than the federal government and should keep up to date on changes in wage and hour laws. 

Employers are also reminded that the FLSA has many exceptions and exemptions to the minimum wage and overtime requirements.  Employers should regularly review position descriptions to determine if employees may qualify for these exceptions and exemptions to ensure labor costs are efficient as possible. 

Action Items:
Employers should:

1. Revise their policies and practices if legal updates require;
2. Review exempt classifications of current employers to ensure they continue to qualify;
3. Review non-exempt positions that may qualify for exemptions; and
4. Set a regular schedule to review policies and procedures to ensure compliance with federal, state, and local laws and regulations.

Please contact us if you have any questions or would like assistance regarding these matters.

UPDATE: on Wednesday, February 20, 2013 at 11:39AM

It appears that the fashion industry has already been hit with a lawsuit from its interns.  Apparently, Elite Model Management was sued in a collective action under the Fair Labor Standards Act (FLSA) by a former intern.  The former intern alleges that the company misclassified young workers as unpaid interns in violation of the FLSA.  The lawsuit alleges damages in the amount of $50 Million. 

Employers looking to use interns should carefully review the regulations to assure they are in compliance with all the statutory and regulatory requirements prior to doing so.  The DOL and plaintiffs firms are proactive in pursuing these issues.

See a brief article in the New York Post here.

Department of Labor Investigations - Basics for an Employer

Mr. Richard W. Castleton has published a new article through Senior Business Connection.  The article focuses on government investigations by the U.S. Department of Labor Wage and Hour Division.  It describes the general process of these investigations, what employers should expect when undergoing such an investigation, and some practical tips on how to prepare.  The article is posted here on Senior Business Connection’s website and has been included below in its entirety. 

Please contact us if you have any questions relating to wage and hour compliance or investigations.

DEPARTMENT OF LABOR INVESTIGATIONS - BASICS FOR AN EMPLOYER

Over the last several years, the United States Department of Labor Wage and Hour Division (WHD) has substantially increased enforcement efforts through increased personnel, funds, and focus on certain industries. The WHD enforces several laws, including the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), among others. Understanding the mechanics of a WHD investigation can help the employer remain calm and prepare appropriately.

General Information
WHD investigations begin as a result of either an employee or competitor complaint, or a WHD-initiated investigation. When conducting FLSA investigations, Investigators focus on employer compliance with minimum wage, overtime, child labor, and recordkeeping requirements, as well as any exemption requirements the employer may claim. Investigators gather information by (1) conducting an initial conference, (2) reviewing records, (3) interviewing employees, (4) calculating back wages, and (5) conducting a final conference.

Initial Conference
Investigators will initiate the investigation either by setting up an appointment for an initial conference or stopping in unannounced. During the initial conference, the investigator will ask about the business’s nature, size, gross revenues, payment methods, work week, claimed exemptions, and other general information.

Records Review
After the initial conference, the investigator will begin reviewing records or interviewing employees. An employer should provide a quiet, private place for the investigator to work. During records review, the investigator may review, record, or copy relevant records, including payroll records, employee records, employment contracts, and others.

Employee Interviews
The investigator will also interview employees to ask about the employer’s pay practices and policies. The WHD will insist that most interviews be conducted without the employer or its attorney present. However, this privacy does not extend to members of management. No employer should permit an upper-level manager to be interviewed without the employer or employer’s representative present.

Back Wages
The investigator’s next step is calculating back wages. Employers should always verify that the investigator considers vacation time, holidays, and other non-working days that could mitigate the amount of back wages. Furthermore, employers should also be aware of applicable Circuit Court rulings on back wage calculations for certain violations. Circuit Courts’ rulings prevail if there is a different in WHD enforcement policy and the courts, and such differences could have a significant effect on the amount of back wages due.

Final Conference
At the end of the investigation, an investigator will meet with management and discuss violations. The investigator will invite the employer to come into compliance and disclose the amount of back wages owed. If, however, the employer refuses to come into compliance, or disagrees with the investigator’s findings on exemptions, back wages, or other issues, the case may be referred to the investigator’s manager.

Conclusion

The WHD is currently engaged in an unprecedented number of investigations. Mistakes are often made. Employers should be cooperative and amicable, but remain vigilant to spot errors and ensure that the investigator is taking into consideration all possible exceptions and exemptions. Employers should seek clarification when needed and should feel comfortable to hire an attorney if needed.

BCC Seminar Series - Workers Comp, Benefits, & Other HR Matters

Burke Costanza & Carberry LLP is pleased to announce the continuation of its seminar series aimed at providing practical tips to clients and friends. The next seminar will take place on January 29, 2013 and focus on a variety of employment law and related topics.  This seminar will help executive management and human resource professionals better prepare for and respond to legal issues arising under federal and state laws in the areas of workers compensation, employee benefits, wage & hour matters, and EEOC charges. 

Please contact our offices if you would like more details. Space is limited and an RSVP is required.

Assisted Living Facilities - Common Wage & Hour Issues

Mr. Richard W. Castleton has published a new article through Senior Business Connection.  The article focuses on wage and hour matters including common compliance problems assisted living facilities and senior resident facilities regularly face under the Fair Labor Standards Act (FLSA).  The article is posted here on Senior Business Connection’s website and has been included below in its entirety.

Please contact us if you have any questions relating to wage and hour compliance.

COMMON WAGE & HOUR ISSUES

When someone says wage and hour law, they are generally referring to laws that govern minimum wage, overtime, family and medical leave, and other similar issues. Each industry tends to develop its own common patterns and practices in this area of law which likely results from owners and managers sharing best practices and ideas about how to improve. However, some common industry practices are not always correct and may give rise to back wage liability or other issues. Unfortunately, this is the case in the senior living industry. While we cannot address all of the common issues in the industry, this article will address several of those issues along with some action items for employers.

Post- & Pre-Shift Work Time:
One of the most common issues in industries that involve nurses, certified nursing assistants, and caregivers is off-the-clock, or pre- and post-shift, work time. Pre- or post-shift work usually occurs because employees are required to pass along information to the next incoming staff member to ensure the highest level of care to the resident or patient. At times, employees will clock in after receiving this information at the start of the shift, or clock out before giving this information at the end of the shift. However, this exchange is considered “hours worked” under the law and must be compensated.

Meal Breaks:
Meal breaks are customarily thirty (30) minutes or longer of unpaid time provided the meal breaks are completely “duty-free.” If the employee performs any work during the meal break, the employee must be compensated for that time. By way of example, an employee who eats lunch with residents of an assisted living facility who happens to help a resident eat his or her food must be compensated for that meal break as it is not completely “duty-free.”

Shift Pay:
It is also common in certain facilities for employers to compensate employees on a flat-fee basis per shift. This is not illegal, but it may at times create problems for employers. For example, consider an employee who works a twenty-four (24) hour shift (with an eight (8) hour sleep credit) for compensation of $150 per shift. If the employee works any additional hours during the eight (8) hour sleep credit, the employee must be compensated for that work. Furthermore, failure to adequately inform the employee that the flat-fee shift rate takes into consideration overtime compensation for a certain number of hours, the employer may be required to pay additional overtime back wages.

Risk & Liability:
While the issues listed above may not appear to result in significant back wage liability for isolated violations, it is important to remember that violations usually occur more regularly than the employer may realize. For example, if an employer hires a full-time, non-exempt employee to work forty (40) hours per week, a ten (10) minute pre-shift work violation every day for two years may not only result in a straight-time violation, but may also result in a violation of the overtime provisions of the law as well. Couple this with an occasional meal break and incorrect calculation of overtime pay as a result of paying the employee on a flat-fee basis, and the back wage liability begins to increase more quickly.

Employers should review their policies and investigate what is actually happening in their companies. If these issues are found, employers may make small modifications to works schedules to reduce pre- and post-shift work time; require employees to go off site or out of the building to ensure that meal breaks are completely duty-free; and review handbook policies and or employment contracts to ensure that the policies and contracts contain adequate and clear language that informs employees that flat-fee shift rate includes a certain number of hours of overtime.