The New Form I-9 Is Here!

The New Form I-9 Is Here

May 6,  2013

Executive Summary:  After a lengthy delay and extensive comment period, U.S. Citizenship and Immigration Services (USCIS) released today a revised Form I-9 (Rev. 03/08/13 N). Employers may download the new form by visiting the USCIS web site at:  http://www.uscis.gov/files/form/i-9.pdf.    The government has made several significant changes to the Form I-9, which must be used by all employers to verify the identity and employment eligibility of new hires to confirm they are authorized to work in the United States.  Although prior versions of the Form I-9 will remain valid for use until May 7, 2013, we encourage employers to begin using the revised form immediately.

Key Changes in The New Form 

USCIS highlighted three key changes to the Form I-9 that it said are designed to minimize errors in completing the form.  They are:

1. Addition of new data fields.  The revised Form I-9 debuts new fields for collecting data on the individual's foreign passport (if applicable), telephone number, and e-mail address.  During the notice and comment period for the proposed form, employers voiced concern over the addition of the latter two fields.  The Instructions to the Form I-9 now indicate that employees may voluntarily provide a telephone number and e-mail address in Section 1; however, if employees choose not to provide this information, they may write "N/A" instead. The Instructions also contain a vague (and somewhat ominous) explanation that DHS may contact the individual if there is a mismatch between government records and the information the individual provided.  
2. Revisions to the layout of the form.  The length of the Form I-9 itself has increased from one page to two pages to accommodate the new fields, a larger font size, and a layout that is intended to be easier to read.  Section 1: Employee Information and Attestation takes up the entire first page, while Section 2: Employer Review and Verification and Section 3: Reverification and Rehires are both on page two.  The List of Acceptable Documents now includes clarifying language as to the types of documents that may be accepted for I-9 purposes, including language on restricted Social Security cards. 
3. Improvement in the form's instructions.  USCIS has improved some of the language in the Instructions to the Form I-9 as well.  For instance, the new Instructions include more definitive statements on the required timing for completing the Form I-9 and the employee's presentation of acceptable documents.  The format of the Instructions has also improved the overall readability of the form, but the number of pages has doubled from prior versions (from three pages to six pages of Instructions).  Additionally, USCIS indicates that it is in the process of updating "The Handbook for Employers" (M-274) “ a useful guide for employers on completing the Form I-9" to comport with the revised Form I-9 and that an updated version of the Handbook will be released soon.

What Employers Should Do Now

All employers should understand the impact of the changes and become familiar with the new Form I-9.  While employers generally are encouraged to begin using the new Form I-9 right away, USCIS has heeded pleas for a transition period from employers for whom immediate use of the form would not be possible.  Such employers include those that will need to update their internal business processes and train staff, as well as users of electronic I-9 systems that will have to be modified to conform to the new form's content and design changes.  Employers have sixty days before they must begin using the 03/08/13 version of the Form I-9 exclusively.  Prior versions of the Forms dated 02/02/09 and 08/07/09 will be accepted until May 7, 2013.

Please note that use of the revised Form I-9 is prospective – that is for new hires moving forward from today.  Employers do not need to "re-do" the Form I-9s for existing employees already completed and on file.  Excessive or unnecessary verification of existing employees may bring an employer under Department of Justice scrutiny for a violation of antidiscrimination provisions of the Immigration and Nationality Act.

What To Look Out For In The Future


The release of the new Form I-9 comes amidst growing political discourse over comprehensive immigration reform, a potential federal mandate that would require use of the electronic E-Verify system by more employers, and reported changes by U.S. Customs and Border Protection to convert to paperless I-94 Cards, which would eliminate a document commonly presented by employment-authorized temporary workers in the I-9 process. S2Verify will continue to monitor these developments and the potential implications for our customers.

Large National Retailer Settles Class Action for $3 Million

A large retailer reached a settlement for $3 million dollars over allegations that it violated the Fair Credit Reporting Act (FCRA).  The allegation stated that the large retailer failed to notify over 64,500 applicants and give them  due process to dispute the accuracy of the information contained in the Consumer Report.

The FCRA clearly states that you must notify an applicant if a "Consumer Report" contains derogatory information about the applicant and give them time to dispute or correct the information prior to making a final determination on their employment.   It further states that you must give the applicant the contact information of the Credit Reporting Agency (CRA).  This process is defined as pre-adverse action.

It is alleged that the large retailer bypassed this step in the process and simply notified the applicants of the adverse action or their potential denial of employment.

As a reminder to employers, you are obligated to follow the Fair Credit Reporting Act (FCRA) as well as state laws.

The obligation for the employer under the FCRA:

1) Provide the applicant with a separate "Disclosure and Consent" form.
2) Ensure that your consent covers any additional State Laws if they applicant is located in that state.
3) Give the applicant access to the "Summary of Rights" that was updated as of January 1, 2013.
4) If their "Consumer Report" contains derogatory information that will affect their employment, notify the applicant with pre-adverse action and let them know what Credit Reporting Agency to contact to clear up any information that is inaccurate. 
5) If the information is accurate and you determine that the applicant is not suited for a specific job, then notify the applicant of adverse action and again give the applicant the name of the CRA and another copy of the "Summary of Rights."

For more information regarding the employers responsibility, please refer to the Fair Credit Reporting Act.

How Does Washington State's Recent Law Affect Drug Testing?

Washington State recently passed a law that legalizes Marijuana. How does this new law affect employers that have a drug free workplace policy and drug tests their applicants?

Although Washington State passed the law on marijuana, it is still a drug that is on the Federal list of banned substances.  

To give you a little history, prior to the implementation of the Drug Free Workplace Act of 1988, the US Postal Service did a study on the use of marijuana and it's effects.  The facts according to the study are there is significant higher absenteeism rates, higher medical health care costs and higher and lower productivity rates for those individuals that used marijuana.  All of these factors cost American Business billions of dollars each year.

We do suggest that all companies update their policies to reflect that the company does have a "Drug Free Workplace" and that they adhere to the list of banned substances that are provided under "Federal Law".

Also, according to two recent court cases in both Washington State and Oregon, it appears your company has the right to deny employment based on a positive marijuana drug test. 

“In June 2011, the Washington Supreme Court held in Roe v. Teletech Customer Care Management, LLC, decided in June 2011, that the Washington State Medical Use of Marijuana Act does not prohibit an employer from discharging an employee for use of medical marijuana.  The Court noted that Washington’s Medical Use of Marijuana Act was passed only to provide an affirmative defense to qualifying patients, caregivers and physicians for conduct that is otherwise prohibited by law (such as a defense to a violation of a local ordinance or state law prohibiting the personal possession or use of the drug).  The Court’s decision goes on to confirm that the statute explicitly states that it does not require accommodation of any medical use of marijuana in any place of employment. In other words, the Court’s decision in this case confirms that the Act was not passed to give employees a free pass to violate their employer’s drug-free workplace policies and that employers may continue to hold their employees – even those with a lawful medicinal marijuana prescription – accountable under their drug-free policies.

The Oregon Supreme Court issued a similar ruling last year, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries.  In that case, the Oregon Court confirmed that employers are not required to accommodate use of medical marijuana under the Oregon Medical Marijuana Act.   The Court specifically held that an employer was justified in revoking an employee’s offer of permanent employment after he notified the employer of his medical marijuana use.  Following termination, the employee argued that he was discharged because of a disability which the employer failed to accommodate.  The Court sided with the employer that the employee was not protected and the United States Controlled Substances Act – a law that the Court concluded preempted the Oregon statute authorizing use of medical marijuana.”
Should you have any questions, please don't hesitate to give us a call.

Happy New Year!

Newark (NJ) Ordinance "Bans the Box" and Significantly Restricts the Use of Criminal History Information in Employment

The City of Newark, New Jersey recently passed an ordinance that will significantly impact employers’ and other entities’ ability to conduct criminal background checks or even ask about a candidate’s criminal background. The ordinance limits both when and the extent to which employers may ask about or use criminal history in employment. Newark’s ordinance12-1630, entitled “Ordinance To Assist The Successful Reintegration Of Formerly Incarcerated People Into The Community By Removing Barriers To Gainful Employment And Stable Housing After Their Release From Prison; And To Enhance The Health And Security Of The Community By Assisting People With Criminal Convictions On Reintegration Into The Community And Providing For Their Families,” goes into effect on November 18, 2012.

Newark’s ordinance is the latest example of a series of efforts at the federal, state and local level aimed at curtailing employers’ ability to use criminal history information in employment. At the federal level, employers should be aware of the Equal Employment Opportunity Commission’s (EEOC) April 25, 2012 Guidance on the Use of Arrest and Convictions (the Guidance) which sets forth practices employers may want to consider so as not to be a target of the EEOC. Similarly, a number of states have pending legislation seeking to follow the EEOC’s lead. This, in addition to other states which have already regulated this area.

Who is Covered Under Newark’s Ordinance

Newark’s ordinance is only applicable when the “the physical location of the prospective employment [is] in whole or substantial part, within the City of Newark.” In that sense, it is of limited local application. Importantly, the term “employer” is defined as “any person, company, corporation, firm, labor organization, or association, which has five (5) or more employees and does business, employs persons, or takes applications for employment within the city of Newark…”

“Employment” is defined more broadly, however, as “any occupation, vocation, job, work or employment with or without pay, including temporary or seasonal work, contracted work, contingent work, and work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay.” (emphasis added).
These definitions suggest that the prohibitions contained in the ordinance, as well as the affirmative obligations it imposes, may apply with equal force when an employer is seeking volunteers, students, or independent contractors as opposed to solely employees.

As always, we suggest you consult with your own counsel regarding this matter, however feel free to contact us for further information.

Modified "Summary of Rights" goes into effect January 1, 2013

The entire focus here is on wording which modifies whose authority governs the notice process..... Our forms within the system will be in full compliance as of the effective date, 1-1-2013 For our clients that  handle their own notice and disclosure, you will be required to make the changes regarding the governing body, should the consumer want to contact them.  ( CFPB V FTC )
 According to regulations from the Consumer Financial Protection Bureau (CFP, three essential forms mandated by the federal Fair Credit Reporting Act (FCRA) used in the background screening process must be modified by January 1, 2013. The forms must be changed to reflect that consumers can obtain information about their rights under the FCRA from the CFPB instead of the Federal Trade Commission (FTC). The three forms in use currently indicate that the FTC is the agency consumers can contact with questions.
The three forms at issue are:

• Summary of Consumer Rights under the FCRA
• Notice to Users of Consumer Reports of their Obligations under the 
• Notice to Furnishers of Information of their Obligations under the FCRA

Each of the three notices is mandated for use in certain situations under the Fair Credit Reporting Act:

• The “Summary of Consumer Rights under the FCRA” is a notice that a background screening firm must provide to an employer and employers in turn must provide the notice to applicants in different situations.
• The FCRA also mandates that a background screening firm (known as a Consumer Reporting Agency or “CRA”) must provide each user of its services the “Notice to Users of Consumer Reports of their Obligations under the FCRA.”
• The “Notice to Furnishers of Information of their Obligations under the FCRA” is aimed at certain furnishers of information to CRAs and must be provided in prescribed situations such as a re-investigation where the consumer disputes the report or in a situation involving identity theft.

The changes are the result of the creation of the CFPB as part of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) that was signed into law by President Barack Obama on July 21, 2010. The CFPB has rule making and enforcement powers over the FCRA. However, the CFPB does not have supervisory power over background screening firms. Congress specifically exempted background screening firms from being supervised by the CFPB since a background check report is not a financial product. The result may be some confusion as the CFPB and FTC determine which agency will perform which tasks.
The primary difference is that instead of listing the FTC contact information, the CFPB contact information is utilized in the form.

Click here to get a copy of the new "FCRA-Summary of Rights 2013"

Dollar General Next on the List for the EEOC

According to Dollar Generals latest 10Q, they are being investigated by the EEOC regarding their Background Screening Policy and how they use criminal records in hiring. The EEOC has alleged that Dollar General has discriminated against minorities for the way they apply their policy against applicants with criminal records.

Although the complaint has not been settled, it will be a long and arduous process to resolve this matter with the EEOC. 

All companies should review their employment screening policy and process to adhere to the "New Guidelines" published by the EEOC.  

Indiana to Restrict Use of Criminal Records

The State of Indiana recently passed a law that prohibits the use of certain criminal records.   The new law Indiana House Bill 1033 limits the use of what Employers may obtain from an applicant, what a "consumer reporting agency" (CRA) may obtain from the state courts and what a CRA can report to employers. 

Effective July 1, 2012, the prohibits courts from disclosing information on alleged infractions where the records is:

• is not prosecuted or if the action against the person is dismissed;
• is adjudged not to have committed the infraction; or
• is adjudged to have committed the infraction and the adjudication is subsequently vacated;
• was convicted of the infraction and satisfied any judgement attendant to the infraction conviction more than five years ago.
• the court in which the action was filed shall order the clerk not to disclose or permit disclosure of information related to the infraction to a noncriminal justice organization or an individual.

The bill also contains additional requirements that take effect on July 1, 2013.  We will send out more information on these new requirements as we move closer to the effective date.