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If you have a nondiscretionary bonus plan that is awarded to nonexempt employees at intervals greater than each week (for example, on a quarterly, semiannual, or annual basis), you are required to retroactively calculate the bonus into the employee’s “regular rate” of pay.
You’re also required to pay additional overtime and double-time wages to include the bonus amount for each overtime and double-time hour worked. But how to go about this? Paying Overtime on Bonuses: A Calculation Guide explains, step by step, how to do the math for both incentive-based and nonincentive-based bonuses. Remember, it’s Free Report Friday—get your copy of Paying Overtime on Bonuses: A Calculation Guide absolutely free.
Download your copy now.
Yesterday, we looked at some of the key aspects of the I-9 rules. Today, the penalties you face if you get it wrong—plus an answer to the question of what to do if you discover that you’re missing I-9s for one or more employees.
The info below is courtesy of Dora V. Lane and Anthony L. Hall of Holland & Hart.
For yesterday’s installment, click here.
Penalties Failure to comply with the IRCA’s I-9 rules can result in significant fines, loss of access to government contracts, and highly negative publicity for your company. Penalties can be imposed for hiring unauthorized workers as well as for simply committing paperwork violations, even if all of your workers are authorized to work.
Employment of unauthorized workers may result in fines up to $16,000 and six months’ imprisonment. Employers that knowingly hire or continue to employ unauthorized aliens can be barred from competing for government contracts for a year. Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $110 penalty, topping out at $1,100 for each form. A missing form would automatically be assessed at $1,100.
In addition, an individual who knowingly commits or participates in document fraud may be fined between $375 and $3,200 per document for the first offense and between $3,200 and $6,500 per document for subsequent offenses.
I-9s, E-Verify, and More: 2012 Immigration Update for California Employers—webinar coming this Friday!
What to Do About Missing I-9s If you discover that you don’t have an I-9 form on file for an employee, you must immediately ask him to complete an I-9 and submit supporting documentation. The new form should be dated when it’s completed and never backdated. If an employee cannot provide acceptable documentation, you are on notice of his ineligibility to work. You may be subject to penalties for “knowingly” continuing to employ a worker under those circumstances. As always, you should contact your attorney about how to handle such a situation.
I-9s, E-Verify, and More: 2012 Immigration Update for California Employers 2011 was a challenging year for immigration issues in the workplace, and 2012 isn’t shaping up to be much better:
* Federal inspectors are turbo-charging their audits of immigrant hiring practices and paperwork, inspecting thousands of companies across the country. What’s worse, they’re now targeting employers in these investigations, not illegal workers.
* After a major court battle, the Social Security Administration (SSA) has resumed sending “no-match” letters to employers when the information provided by employees to verify U.S. work eligibility doesn’t match the data in SSA’s files. They’re different than previous “no-match” letters, and they’re causing lots of headaches for employers.
* Regulators have begun revising (again!) the confusing, dreaded I-9 form because the current version raises lots of questions in practice (from the types of identification documents employees must present to the deadline for employers to complete the form for new hires).
* E-Verify—the federal system for determining work eligibility—continues triggering lots of complaints, from “false positives” that incorrectly flag workers as ineligible to legal concerns about the system’s photo screening tool.
Plus, the USCIS has “stepped up” its fraud investigations, and DOL and ICE have increased their wage/hour and I-9 audits. Understandably, employers aren’t completely clear on what to do if they undergo an investigation—particularly since they can now be hit on multiple fronts at once.
Participate in our interactive and timely webinar tomorrow and learn:
* Best practices for bulletproofing your I-9 procedures—from filling out, verifying, filing, and destroying the forms to auditing your I-9s and dealing with workers who refuse to submit them * The documentation employees are allowed to submit for I-9 verification—and why you shouldn’t collect more than is legally required * What to do if you receive a no-match letter—and what you should never do * The latest updates on E-Verify, including tips for handling “tentative non-confirmations” properly and giving your employees notice that you’re using the system * Practical guidelines for avoiding the most common bias claims related to immigration issues * How you should handle federal immigration records requests, audits, and on-site inspections * The industries that are particularly vulnerable to DOL and ICE audits, inspections, and raids
In just 90 minutes, you’ll learn everything you need to know about shoring up your policies and procedures relating to I-9s, E-Verify, and more to make your organization resistant to lawsuits and government audits. Register now for this timely event risk-free.
Can’t make it tomorrow? No problem. Just order the CD and learn at your leisure.
Download your free copy of 20 Must-Have Employee Handbook Policies today!
What if you conduct an I-9 audit and discover that you are missing some employees’ I-9 forms? You don’t know if they were accidentally purged, filed incorrectly, or never completed. Can you ask the affected employees to fill out another I-9? If so, do you ask them to backdate it or use the current date?
First of all, the fact that your company conducted an I-9 audit ensures your good faith compliance with federal immigration laws and may minimize civil fines for improper completion of I-9 forms. U.S. Immigration and Customs Enforcement officers can audit and fine employers $1,100 per I-9 for improperly completed forms.
Here’s a rundown of some of the key aspects of the I-9 process, courtesy of Dora V. Lane and Anthony L. Hall of Holland & Hart.
I-9 Form The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify and document that all newly hired employees (not unpaid volunteers or contractors) are eligible to work in the United States. The I-9 form, also known as the Employment Eligibility Verification Form, is a one-page document provided by the federal government that employees and employers must complete. The form itself has three parts.
Section 1 includes basic biographical information on the employee and also asks the employee to certify that he is a U.S. citizen, U.S. national, or permanent resident or is authorized to work under another status.
Section 2 is completed by the employer, which must verify the original documents presented by an employee to prove his identity and right to work. Section 2 must be completed within three business days of the date of hire.
Section 3 is reserved for employers that must periodically update the I-9 form if the worker isn’t authorized to work permanently in the United States or changes biographical details such as her maiden name.
I-9s, E-Verify, and More: 2012 Immigration Update for California Employers—webinar coming this Friday! Read more.
Covered Employees
Every employee hired after Nov. 6, 1986, must complete an I-9 form at the time he is hired. And as of April 3, 2009, employers must use the new mandatory Form I-9, which has been updated to meet U.S. Department of Homeland Security (DHS) regulations.
Workers who aren’t hired do not need to complete I-9 forms. Be careful, though—employers that selectively choose who will and will not complete an I-9 could face penalties under antidiscrimination rules.
Unpaid volunteers aren’t subject to I-9 rules. Neither are independent contractors, although you shouldn’t use independent contractors to circumvent immigration laws and employ undocumented workers. In addition, you should be aware that if you contract work to companies that you know use unauthorized workers, your company could be held liable under the IRCA.
Employees transferring to a different job within a company are not required to complete an I-9 form. Likewise, employees rehired by a company aren’t required to complete a new I-9 as long as they resume work within three years of completing the initial form. It’s also unnecessary for employees to complete a new I-9 after returning from paid or unpaid leave (e.g., for illness or a vacation), a temporary layoff, or a strike or labor dispute.
Timing
Employers are responsible for ensuring that I-9 forms are completed properly and in a timely manner. The employee must complete the first section of the I-9 form and provide the supporting documents within three days of the date of hire. Notably, I-9 forms may be completed, signed, and stored electronically.
If the supporting documents aren’t presented within three days of the date of hire, the employee must be removed from the payroll (although it is permissible to suspend the worker rather than terminating her).
It is generally not a good idea to have someone complete an I-9 before you make an offer of employment because the form elicits information about one’s national origin. If you subsequently decide not to hire the person, even for a good reason, the rejection could trigger a discrimination claim.
Documentation
The employee must present a document or a combination of documents that establishes both his identity and his legal authorization to work in the United States. Only unexpired documents are acceptable. A variety of documents are sufficient for I-9 purposes.
The acceptable documents are broken down into an “A” List, a “B” List, and a “C” List. The documents on List A can be used to establish both identity and employment eligibility. The documents on List B establish identity and must be used together with a document from List C to establish employment eligibility. You are not allowed to tell employees which documents from the pre-set list they must present.
Documents that may be used under List A to establish both identity and employment eligibility include:
Documents that may be used under List B to establish identity include:
The following documents may be used to establish identity for individuals under the age of 18 only:
As mentioned above, employees who supply an item from List B must also supply a document from List C to establish employment eligibility. List C documents include:
Get all your I-9 questions answered—sign up for Friday’s webinar, specifically for California employers.
Recordkeeping
Your company must retain an I-9 form for every current employee. You must also retain an I-9 form for all former employees, regardless of whether they leave or are terminated, for three years after their hire date or one year after they leave—whichever is longer.
I-9 forms may be stored at the worksite to which they relate, company headquarters, or an off-site storage facility. Regardless of the location, it must be possible for the documents to be transmitted to the worksite within three days of an official request to produce the documents for inspection.
You need not retain copies of the supporting documents unless you choose to do so. However, maintaining supporting documentation could provide a good faith defense for showing that you had reason to believe an employee was authorized to work even if the paperwork wasn’t properly completed.
In addition, IRCA compliance officers may be suspicious of employers that don’t keep copies of documents. Regardless of which method your company chooses (keeping the documentation or discarding it), it’s important that you consistently apply your policy.
Reverification
I-9s are valid continuously for U.S. citizens unless a break of employment of more than a year occurs. If an employee isn’t a U.S. citizen or a lawful permanent resident, he is likely working under a status with a defined end date.
For those employees, you must note the expiration of their documents on the I-9 form and then pull their forms before the expiration date and reverify that their status has been extended. It’s therefore a good idea to establish a reliable system to remind yourself about reverification. Green cards and passports with expiration dates do not need to be reverified.
Tomorrow, the stiff penalties for I-9 noncompliance—plus the answer to the question we posed in the opening paragraph about missing I-9s.
The number one mistake I see is untrained supervisors responding negatively to employees’ requests for reasonable accommodation, says attorney Mark Schickman. They just say “no” without any interactive discussion.
Even if you’re sure there’s no hope of accommodation, you have to have the interactive discussion, he says. And once the refusal is made, and the employee complains, it’s too late to go back. Schickman, a partner at Freeland Cooper & Foreman LLP in San Francisco, joined other attorney experts from the Employers Counsel Network to deliver hard-hitting answers to questions about the most expensive mistake HR managers make. The remarks came at BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas.
H1B Public Access File
For immigration expert Hector Chichoni, partner at Duane Morris LLP in Miami, the most common problem is failure to maintain the public access files for H1B determinations. The requirements for the file are extensive, and the file has to be available for inspection by the public with a day of its submittal. Many employers don’t have this file at all, Chichoni says.
Your complete California employment law desk reference—fully updated for 2012!
Limiting Those Who Need to Know
The most common mistake Dinita James sees is failure to limit the number of people in the know about employees who make complaints, request leave, or take other protected actions. The most basic defense to a charge of retaliation is that the decision maker did not know about the activity. That’s the end of the retaliation claim.
When everyone knows about the protected activity, any negative action taken by anyone will be interpreted as retaliation.
And Don’t Forget State Law
Another common—and costly—mistake made by supervisors and HR professionals alike is failing to consider the many unique nuances of California employment law.
Unless you’re a research superstar, you might not know all you should about these state laws. Why? Unlike the federal government, which puts all new regulations into the Federal Register, states publicize their new regulations in obscure journals, not widely available. Yet officials still expect you to comply.
Fortunately, tools are available to help you keep up with state laws. One is our newly updated 2012 Guide to Employment Law for California Employers. This valuable desk reference has kept employers apprised of state law and its differences from the federal law for years. Here are some reasons they tell us they won’t be without it:
Don’t make a guess about the state of the law in California—getting it wrong could cost you big. Reserve your own copy of the complete 2012 Guide to Employment Law for California Employers—risk-free.
Presents and compares federal and state law on 200 employment topics. For each topic, first there’s a plain English explanation of what you need for federal compliance. Then, right next to the federal, there’s an explanation of what California requires.
Topics alphabetically arranged. Pick today’s HR challenge, from “Affirmative Action” to “Workers’ Compensation,” and it’s easily found.
Highlights of the main changes to both California and federal law for 2012. Easy-scan checklists provide a quick rundown of the main changes you need to be concerned about—turn to the appropriate section in the Guide for a full explanation.
You’ll have easy access to:
Best of all, the guide costs less than 77 cents each workday in 2012. Compliance peace of mind for less than your daily cup of coffee—you won’t find a better deal anywhere.
Click here to order your copy today, before we get any further into the new year. If you’re not 100 percent thrilled with it, just return it and pay nothing—there’s no risk to you.
Download your free copy of Training Your New Supervisors: 11 Practical Lessons today!
The biggest mistake I see managers making is failure to document, says attorney Molly DiBianca, member of the Employers Counsel Network. And the number two mistake is casual background checks on social media.
DiBianca’s remarks came at BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas.
Documentation Failures Doom Defense
“The mistake I often see is failure to document, or failure to document well,” says DiBianca, who is with Young, Conaway, Stargatt & Taylor, LLP. “Your defense falls apart if you don’t have documentation to back it up.” “The problem is that managers just don’t do it,” she says. “You have to train them and you have to keep after them.”
Casual Online Reference Checking
Another mistake that DiBianca sees is casual background checks on social media. If you are going to do them, consider the following to reduce liability, she says: 1. Decide beforehand what you will be looking for (e.g., illegal activity), make a list, and clear the list with your attorney. Keep the list to five items. 2. Limit your search to final candidates. 3. Make sure the searcher and decision maker are different people (the best defense is that the hiring manager doesn’t even know about whatever impermissible information was uncovered). 4. Document your search, what you searched for, and where you searched.
5. Let the candidate know that you are doing the search. 6. Share the results with the candidate if you are making a negative determination based on it, and especially if you have reason to doubt the validity of the information. 7 .Control hiring managers. One informal survey found that only 10 percent of HR departments were doing social media background checks, but 100 percent of hiring managers were doing them! In tomorrow’s CED, more mistakes managers make, plus an introduction to an invaluable desk reference for California HR professionals.
The employment laws in California are some of the strictest in the nation.
It's no secret that we live in the most litigious society in history. And that companies like yours are a favorite target for the media, attorneys, courts, disgruntled employees, and even job candidates.
California workers are particularly prone to complain about the company that employs them.
California Employer Advisor, our award-winning HR advisory newsletter, will introduce you to all aspects of the continually changing state and federal laws governing your relationship with your employees.
Not only do we report on the important laws, management practices, and cases that impact your business, we also outline pragmatic, actionable ideas to help ensure full compliance, avoid lawsuits, and protect your company from financial losses