This week’s Compliance News Flash features information on the GDPR and the assessment of administrative fines, remote hires and the employment eligibility verification process, Homeland Security and worksite enforcement for small businesses, the end of Temporary Protected Status for Nicaraguans, and information about my presentation on developing a compliant background screening program at my firm’s upcoming Employment Law Seminar in Atlanta next week.

Click here to read the News Flash.

Below is a link to an article of mine published in HR Executive’s Recruiting Trends on October 31, 2017. In the article I provide insights on what small businesses can do to comply with increased immigration enforcement by Homeland Security around the employment eligibility verification form, known as the Form I-9, and company’s hiring practices.

Click here to read the full article.

 

This week’s Compliance News Flash features information on New York City’s pay equity law, stats on FCRA litigation, personnel moves at the Federal Trade Commission, news about a Form I-9 scam, and information about my presentation on developing a compliant background screening at my firm’s upcoming Employment Law Seminar in Atlanta.

Click here to read my News Flash.

If you’re in the Atlanta area I hope you can join me, and my colleagues, for our annual Employment Law Seminar which is scheduled for Friday, November 17 at the Cobb Energy Centre.  There have been many new developments on the employment law front over the past year – and seemingly every day in the news – so we think this year’s seminar presentations will be particularly relevant and useful for our attendees.  And, it’s free plus we feed you! 

Click here to read more about the seminar and click here to register.

 

 

I will be presenting a free webinar on Wednesday, September 13 at 2 pm EST on Fair Chance Hiring Ordinances, also known as Ban the Box ordinances.  I will discuss what these ordinances are, the role they play during the hiring process, and where/how they apply to private employers (including specific state and city examples).

Nationwide over 150 cities and counties have adopted Ban the Box ordinances requiring employers consider a job applicant’s qualifications first, without the stigma of a criminal record. These initiatives provide job applicants a fair chance by removing the conviction history question on the job application and delaying the background check inquiry until later in the hiring process.  But many Ban the Box ordinances go beyond removing the criminal history question from the job application and require that employers take additional steps during the hiring process, such as conducting individualized assessments. Learn more on the free webinar.

The webinar is sponsored by the ClearStar Academy.  To register please click here.

The Trump Administration announced (click here and here) this week that it is phasing out the Deferred Action for Childhood Arrivals (DACA) program.   DACA is a program that allows certain individuals who came to the United States as children, who have continuously resided in the United States and are in school, graduated from high school or obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the military, to apply for benefits.  One important benefit is work authorization.   

What does DACA rescission mean for employers and the employment eligibility verification form (the “Form I-9”)?

DACA is a program implemented in 2012 under the Obama Administration.  It has provided relief from deportation to approximately 700,000 – 800,000 individuals who would otherwise be in the country unlawfully. Under DACA, beneficiaries removal (aka deportation from the United States) is deferred during the duration of the program.  Once the program ends, beneficiaries revert back to their original status and may be  subject to removal from the United States for being unlawfully present in the country.  The DACA program provides recipients renewable two-year term benefits, including an employment authorization document (EAD).  According to the DHS, DACA beneficiaries will be allowed to retain both their DACA status and their EAD until they expire.  DACA-issued EADs are due to expire this year, in 2018 and 2019.  On a case by case basis, U.S. Citizenship and Immigration Services (USCIS) will adjudicate properly filed pending DACA initial requests and associated applications for EADs which were filed and accepted as of September 5, 2017. Certain pending DACA renewal requests and associated applications for EADs where beneficiaries benefits will expire between September 5, 2017 and March 5, 2018 will be adjudicated if the renewal request is filed prior to October 5, 2017.   For more on renewing DACA benefits click here.

In many cases employers will likely not be aware that a particular employee provided an EAD pursuant to DACA as proof of work authorization.  For purposes of completing the Form I-9, a DACA beneficiary would have provided an unexpired EAD for a two year period.  This is a valid List A document for purposes of completing section 2 of the Form I-9.   Given that these EADs will begin expiring it is an important reminder for employers to have a system in place to monitor expiring temporary work authorization documents associated with Form I-9 completion.  Organizations policies and procedures must include a notification system whereby both the organization and the employee are aware and proactively addressing the fact that an individual’s EAD is expiring.  On or before the expiration date listed on the EAD, employers must re-verify the individual’s work authorization.  This re-verification is generally done in section 3 of the Form I-9.   Given that the DACA program is being phased out, current beneficiaries may not have a valid EAD once their current work authorization expires and may therefore not be eligible for continuing employment.

It is important to note that up until an employee’s current EAD expires, DACA beneficiaries are lawfully able to be in the United States and work.  The program is being phased out and not ended effective immediately.  However, once an employee’s temporary EAD expires—regardless of whether they are a DACA beneficiary or not—their continuing work authorization must be verified.  In some cases an individual employee may not be able to demonstrate continuing work authorization either in the form of a List A document (e.g., renewed EAD) or List B and List C documents (e.g., Driver’s License and Social Security Card).  When an employee cannot demonstrate continuing work authorization for purposes of the Form I-9, they must be terminated.  There is no grace period once someone’s temporary work authorization expires allowing them to continue their employment in the United States.  In fact, employers who continue to employ someone knowing they are not authorized to be employed in the United States may face civil and criminal penalties. Civil penalties for knowingly employing unauthorized aliens range from $539 – $4,313 per violation.

To be clear, current DACA beneficiaries holding a valid, unexpired EAD are authorized to work for any employer in the United States for the duration of time listed on their EAD.

On September 12th at 2 pm EST I will be presenting on a SHRM sponsored webinar entitled “What You Need to Know Now About Form I-9 and Immigration Enforcement.”   My co-presenter will be Mark Wobbe from Equifax.  Click here to read more about this upcoming free webinar.

Topics we will discuss include:

  • The new Form I-9 that is effective September 17, 2017.
  • Tips for mitigating potential risk as site visits and audits by U.S. Immigrations and Custom Enforcement (ICE) agents from the Department of Homeland Security increase.
  • Best practices for improving Form I-9 compliance during new hire onboarding.

I hope you can join us.