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Due to ongoing COVID-19 concerns, employers will have the flexibility to remotely review employment documents for I-9 purposes in some circumstances until July 2023 — and they should keep using the current Form I-9 even though it was set to expire at the end of the month, according to two important announcements this week from the Department of Homeland Security (DHS). Here’s what you should know as we wait for additional DHS guidelines and prepare for anticipated changes.
Keep Using the Current Form I-9 — But Stay Tuned for Further Guidance
DHS notified employers that they should continue to use the current I-9 — which has an expiration date of October 31, 2022 — until further notice. So, stay tuned for additional information, as we will provide an update when DHS publishes its new Form I-9, associated instructions, and effective date.
Timely compliance will be critical, since failing to use the current version of Form I-9 can result in administrative penalties. You should be prepared to take immediate action and discard the current version when the new one goes into effect.
Relaxed Document Inspection Rules Remain in Play in Limited Circumstances
Due to continued safety precautions related to COVID-19, DHS announced that it will extend its updated I-9 flexibilities until July 31, 2023. Since early on in the COVID-19 pandemic, USCIS has allowed employers to remotely review — by Zoom, video chat, FaceTime, fax, or other electronic means — the identity and work-authorization documents that are necessary to complete employees’ I-9 forms during the hiring and reverification process. These “relaxed” rules have applied in the following situations:
Under these rules, employers must eventually inspect the relevant documents in person, but only if an employee stops working remotely and begins to report to the employer’s physical location on a regular, consistent, or predictable basis.
A Sign of Changes to Come?
This extension of the relaxed rules aligns with recent DHS efforts to kickstart the rulemaking process for a permanent protocol on remote document review. The latest extension of the relaxed document review rules is seen by some as more proof that DHS is dedicated to creating a permanent remote document examination rule. If implemented, the rule would allow employers to hire workers in far-flung locations, inspect their documents remotely, and eliminate the current requirement of in-person review by a company employee or authorized representative.
This flexibility allows employers whose workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act. The policy initially applied only to employers and workplaces that were working entirely remotely. However, the policy was expanded to cover all employers who hire employees on or after April 1, 2021 to exclusively work remotely due to the employer’s COVID-19 policy. In these cases, the in-person inspection requirement relating to Form I-9 identity and employment eligibility documentation applies only to employees who physically report to work at a company location on any “regular, consistent, or predictable basis.”
The temporary guidance continues to provide the following:
Employers that have gathering bans or restrictions due to COVID-19 are not required to perform an in-person review of the employee’s identity and employment authorization documents. Instead, employers may inspect the employee’s “Section 2” I-9 documents remotely, using “video link, fax or email, etc.” Employers must obtain, inspect and retain copies of the documents within 3 business days, and provide written documentation of their remote onboarding and remote work policy on the employee’s Form I-9. Once normal operations resume, employers must conduct an in-person verification of any documents presented by employees who were onboarded remotely, within 3 days of a return to the work location.
Although DHS has signaled a willingness to permanently adopt remote document examination for I-9 eligibility verification, to date, no permanent changes have been made. Accordingly, employers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.
One of the biggest trends that arose from the pandemic has undoubtedly been the “work from anywhere” mindset. Once both employers and employees realized that work could be performed effectively without sitting in a traditional office, things started to change. Some employers chose to close their brick-and-mortar worksites for good, while some workers decided to relocate to be closer to family or to live in a region with a lower cost of living.
Employers often wonder whether there are legal implications for allowing employees to work temporarily or permanently from a state in which their organization has no business presence. It comes as a surprise to many that allowing an employee to work remotely from a new state is not as simple as they originally thought.
When employers allow an employee to work remotely from a different state, the employer must register to do business in that state and comply with its labor laws. This includes employer payroll and income tax withholding obligations, as well as wage and hour laws and statutory benefits, just to name a few.
Because income tax requirements are based on where income is sourced, rather than where an employer is headquartered, employers must determine their tax obligations based on the state in which their remote employee is performing work. This generally includes registering with the state as a new employer, withholding employee state income tax, and remitting employer state payroll and unemployment taxes.
Wage and Hour Laws
The Fair Labor Standards Act (FLSA) governs wage and hour requirements at the federal level. However, many states have enacted their own laws that are more generous to workers than the FLSA, and employers must comply with these policies, as well. For instance, some states require that meal and rest breaks be provided, where federal law does not. Minimum wage rates and overtime pay laws differ by state, as do final pay requirements. A handful of states also have minimum salary thresholds for exemption that exceed the federal requirements.
Paid Leave Laws
While not required at the federal level, many states and localities have passed laws mandating paid sick leave for employees. The laws vary by jurisdiction with respect to employer size and the amount of leave required, and they often include notice requirements.
Similarly, numerous states have laws regulating vacation leave when voluntarily offered by employers. These laws might require employers to pay out accrued vacation leave upon separation, prohibit use-it-or-lose-it provisions or impose other limitations on employer leave policies.
Additional state leave laws might also entitle employees to time off from work for other reasons, such as absences related to domestic violence, voting or jury duty, or family and medical leave.
The nuances of state laws do not end there. Worker anti-discrimination protections vary at the state level, as do pay equity laws and sexual harassment training requirements. Some states require employers to reimburse employees’ business expenses; others have statutory disability benefits. The list goes on. Employers will need to examine their obligations under various state laws when determining how to manage their remote workforce.
Federal workplace immigration officials recently announced that “relaxed” I-9 rules have been extended until April 30, 2022, ensuring that employers can inspect I-9 documents for certain employees working remotely due to COVID-19 restrictions by way of camera or fax. U.S. Immigration and Customs Enforcement (ICE) noted that this extension will ensure that the guidance for employees hired on or after April 1, 2021, and working exclusively in a remote setting due to COVID-19-related precautions will remain in place for the next several months. What do employers need to know about this December 15 announcement?
Employees who qualify for these relaxed rules are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. When an affected employee commences “non-remote employment on a regular, consistent, or predictable basis” the employer must verify the employee’s documentation in person within three business days.
What if the Remote Employee Leaves Employment Before We Have a Chance to Inspect Their I-9 Documents in Person?
In its announcement, ICE also provided the following guidance: “Employers may be unable to timely inspect and verify, in-person, the Form I-9 supporting documents of employee(s) hired since March 20, 2020, . . .in case-by-case situations (such as cases in which affected employees are no longer employed by the employer). In such cases, employers may memorialize the reason(s) for this inability in a memorandum retained with each affected employee’s Form I-9. Any such reason(s) will be evaluated, on a case-by-case basis, by DHS ICE in the event of a Form I-9 audit.”
When a government agency announces a “case by case” policy, this is of little comfort to employers. We suggest that employers err on the side of caution and have remote new hires’ Form I-9 documentation physically inspected by an authorized representative retained by the employer for that purpose, unless COVID-19 restrictions render that option unadvisable.
You should carefully coach authorized representatives on how to correctly fill out page 2 of the I-9, as any errors or omissions will be attributed to the employer. In the alternative, you should monitor remote employees’ visits to the workplace and conduct the in-person follow-up document review as early as possible.
Given that fines for I-9 errors can run in the thousands of dollars per I-9, the cost of a self-audit is relatively inexpensive, and helps ensure compliance moving forward.
Halloween may be the spookiest time of the year, but it doesn’t have to be frightening for HR professionals. Organizations can plan a fun event that is work-appropriate and accessible to all employees.
An office-based scavenger hunt is the favorite Halloween celebration to date for one company. The HR director remembers the scavenger hunt clues were Halloween-themed riddles and puzzles, and some employees dressed up and hid in broom closets to scare people. The scavenger hunt lasted 20 to 30 minutes, and the prize was a giant pumpkin head full of candy and a $100 gift card to Starbucks.
Any Halloween event—whether in-person or virtual—should be voluntary. With that in mind, these tips and pieces of advice can help your group plan an event employees enjoy.
No court has ever ruled that a “Halloween defense” applies to a business facing a misconduct charge, so it’s necessary to provide guidelines for what costumes and conduct are and aren’t appropriate.
In today’s fraught political environment, even masks depicting our national leaders (of either party) are inadvisable costume choices, especially if one wishes to remain on good terms with co-workers. Employees should also refrain from sharing pics [over e-mail] of themselves in a questionable get-up. One quickly loses control over who sees them—ultimately leading to HR issues.
Keep it simple when reminding staff about costumes, but there is a tendency to over-complicate the message. A lengthy manifesto outlining what costumes are appropriate versus which are not, will likely go unread.
Employees don’t have the attention span to read a lengthy e-mail like that. The better approach is to let your employees know that Halloween costumes are fine, so long as they don’t violate the spirit or letter of your company dress code.
At a company in Indiana, they are planning to resume the company’s long-standing dress-up tradition. The company set a COVID-19-related theme for Halloween this year. Staff members choosing to dress up must incorporate a mask into the costume. Remote employees have received special Zoom invitations to join in from home and are also encouraged to dress up.
In the age of Zoom, it’s easy to involve remote workers in in-office events. Last year, the company encouraged remote employees to adopt spooky Halloween-themed backgrounds for Zoom calls, and that is continuing into this year.
Remote employees can decorate their home office with Halloween stuff, but the company also encourages them to use digital Halloween backgrounds for calls rather than the typical blurred background.
Events involving collaboration and teamwork provide the most employee engagement. Eliciting employees’ ideas for Halloween-themed advertising, packaging or window displays, or planning an outdoor scavenger hunt with clues related to the company’s history or products and services are often a hit.
It is prudent to avoid activities that include religious elements and anything overly terrifying. Stay away from contests that involve physical contact, such as mummifying co-workers in toilet paper, as doing so can create potential COVID-19 as well as definite inappropriate conduct risks.
Dressing up is the first idea that comes to mind for Halloween celebrations, but the holiday is ideal for unique, creative themes. This year, a digital marketing agency is hosting weekly remote watch parties of Halloween episodes of iconic TV shows. The company also mailed acrylic paint markers to staff and encouraged them to paint a pumpkin and share their creations in Slack.
The company chose TV shows instead of movies because they’re shorter and more digestible. Employees can pop into the watch party around lunch, and it’s a fun time without distracting too much from work. They are also leaving space in the Friday companywide video call on Oct. 29 so employees can show off costumes.
Last year when business operations went fully remote, another company replaced its traditional costume dress-up with a “Crazy Hat” party. Employees came up with unique hat ideas showcased in a virtual event. This year the company is hosting a “Hocus Pocus”-themed event in which the remote employees can connect over Zoom or Skype.
The sudden and prolonged isolation brought on by COVID-19 has greatly impacted the normal routines and activities of the entire workforce. While the ongoing vaccine rollout inspires hope for a COVID-free future, the emerging virus variants and the harsh winter weather experienced across the United States after over a year of social distancing have raised further concerns about employee mental health issues and engagement in 2021.
As many employers continue to manage a partially or entirely remote workforce – some of which may shift to a permanent off-site or hybrid workplace model – they’re faced with the challenge of keeping employees connected. Since social health plays an important role in determining an overall sense of wellbeing and a large number of individuals aren’t socializing with coworkers, peers and friends like they used to, it’s important for workplace leaders to provide their people with opportunities to make meaningful connections. The wellbeing of your workforce depends on it.
The mental wellbeing of your workforce is best supported by positive social interactions. Remote workers who have struggled with feelings of loneliness and social isolation are more likely to feel lonely, anxious and depressed, which is why it’s important for organizations to provide plenty of opportunities to engage with their co-workers. Encouraging employees to work together on collaborative tasks, scheduling weekly team meetings (they don’t have to focus on work!) and empowering employees to create and interact with interest-based groups within their digital wellbeing platforms are just a few easy ways to help your people feel connected.
Providing employees with mental health resources is a must. Beyond offering up mental health benefits like mindfulness tools and live health coaching, remote workers can also engage through activities like guided team meditation or virtual yoga sessions. According to MetLife, 79% of employees who report good mental health are less likely to feel detached from their organization. Additionally, 86% of workers who feel that they are mentally healthy are more likely to be productive at work. Rather than simply considering workplace mental health resources as an addition to an employee benefits package, putting an emphasis on mental health as a main component of a company’s culture is an essential business move in 2021.
Countless employees are missing the bustling workplace environment. The constant Zoom meetings and digital interactions lack the sense of social connectedness once accustomed to. Finding unique ways to make regular meetings and virtual communication more engaging is critical for maximizing employee performance. Casual video chats and remote social happy hours are a great way to use technology as an advantage and initiate a stronger connection among employees while working remotely. Additional ways to promote more social interactions among employees include scheduling group exercise breaks or starting a workplace wellbeing challenge. To ensure everyone is able to participate, consider designating employees who really know their way around the virtual world as leaders for a multigenerational workforce. By opening more channels of communication, the remote work environment will improve for everyone and increase employee engagement as well as productivity.
Around 66% of workers are struggling to stay socially connected, which is negatively affecting their wellbeing. Fortunately, by encouraging your remote workforce to prioritize their mental health and social wellbeing, organizations are likely to see a significant increase employee engagement and productivity as employee wellbeing improves.