The Federal Trade Commission (FTC) recently announced reforms to its internal processes to streamline information requests and improve transparency in Commission investigations.  Quick tutorial — the FTC may issue Civil Investigative Demands (CIDs) pursuant to the FTC Act to investigate possible “unfair or deceptive acts or practices” against consumers.

Stemming from the work of the internal Working Groups on Agency Reform and Efficiency, the Bureau of Consumer Protection (BCP) identified best practices and announced reforms related to Civil Investigative Demands (CIDs), which the agency issues in consumer protection cases. The reforms include:

  • Providing plain language descriptions of the CID process and developing business education materials to help small businesses understand how to comply;
  • Adding more detailed descriptions of the scope and purpose of investigations to give companies a better understanding of the information the agency seeks;
  • Where appropriate, limiting the relevant time periods to minimize undue burden on companies;
  • Where appropriate, significantly reducing the length and complexity of CID instructions for providing electronically stored data; and
  • Where appropriate, increasing response times for CIDs (for example, often 21 days to 30 days for targets, and 14 days to 21 days for third parties) to improve the quality and timeliness of compliance by recipients.

In addition, BCP will adhere to its current practice of communicating with investigation targets concerning the status of investigations at least every six months after they comply with the CID.

For those who have been the subject of a CID this won’t take away the pain of having to respond, but moving forward it will help mitigate some of the pain for those subject to a CID.

San Francisco’s Board of Supervisor’s passed a pay equity ordinance on July 11, 2017 which is now awaiting the Mayor’s signature. The “Parity in Pay” ordinance will become operative July 1, 2018. The ordinance will ban private employers from inquiring about and considering a job applicant’s prior salary history. It will also apply to certain contractors working with the city of San Francisco.  The ordinance, which adds Article 33 to the Police Code and Chapter 12K to the Administrative Code, can be found by clicking here.

  • The ordinance will apply to applicants applying for private employment to be performed in the geographic boundaries of San Francisco (the city and county). Under certain circumstances, the ordinance also applies to applicants for private employment where the work is performed under a contract with the city of San Francisco or when the work is performed on city property used under a lease, permit or license.
  • The prohibition is such that an employer cannot consider or rely on an applicant’s salary history as a factor in determining whether to offer employment to an applicant, or what their salary will be. Furthermore, employers cannot release the salary history of current or former employees to an applicant’s prospective employer without written authorization from the current or former employee, unless the release of salary history is required by law, is part of a publicly available record, or is subject to a collective bargaining agreement.
  • If an applicant voluntarily discloses salary history or provides written authorization to the release of salary history, then such can be considered or verified by an employer.

California’s Office of Labor Standards Enforcement (OLSE) will publish and make available in multiple languages notices describing to job applicants and employees their rights under the law. Employers will be required to post such notices in a conspicuous place at their workplace.

San Francisco joins the following states and cities with pay equity ordinances on the books — Delaware, Massachusetts, Oregon, New York City, NY and Philadelphia, PA.

 

Employers take note that a new Form I-9 has been issued by the Department of Homeland Security. The Form I-9 was released July 17 and will be effective September 17, 2017.  Meaning, all employers must use the new version of the Form I-9 no later than September 18, 2017.  As of that date, prior versions of the form will not be acceptable.

In a nutshell the revised Form I-9 will (i) update List C to reflect the most current version of the certification or report of birth issued by the Department of State; (ii) make a change to the form’s instructions to remove “the end of” when describing the day on which Form I-9 completion is required; and (iii) make a revision to the name of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to call it by its new name, the Immigrant and Employee Rights Section (IER). To read more about the changes please click here and see bullet point #4 and click here.

To view the Federal Register announcement click here.

Any questions please don’t hesitate to contact me – montserrat.miller@agg.com.

 

As my readers know, my legal practice covers advising organizations on both compliance with the Fair Credit Reporting Act as well as the Immigration and Nationality Act.  Background screening and immigration.  In the end, both federal laws address employee onboarding issues related to work authorization and background checks.

In addition to writing my (almost) weekly Compliance News Flashes, over the past few months I’ve written a series of bylines for different publications focusing on immigration-related worksite enforcement and how employers can protect themselves regarding their compliance with the employment eligibility verification requirements (i.e., the Form I-9). To facilitate compliance I thought it would be helpful to include these articles, as well as articles I’m quoted in along with a free webinar, in one blog posting with links.

Bylines:

  • The Record-Keeping Mistake You Could Be Making published in Construction Business Owner — “The Employment Eligibility Verification form—known as the Form I-9—is a deceptively difficult form for employers to complete, even though it is only two pages in length and its sole purpose is to document identity and work authorization. Proper completion of the Form I-9 is especially important in the industries with large workforces, given today’s environment. An employer’s good faith compliance with Form I-9 requirements can establish an affirmative defense to allegations of knowingly hiring unauthorized workers.”
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in QSR Magazine — In an article published by QSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in FSR Magazine — In an article published by FSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Strategies to Maintaining a Legal Workforce as Concerns about Increased Worksite Enforcement Increase published in Georgia Contractor — see pages 30 and 31.

Quoted in:

Get Ready for More Immigration Audits,” Human Resource Executive Daily

In an article published by Human Resource Executive Daily on June 5, 2017, Montserrat Miller discusses immigration enforcement in the United States and how employers should prepare. “Make sure people on the front lines, such as receptionists, know what to do when an agent arrives. They also should know what documentation ICE agents are required to present when they arrive, and whom to summon for help, including HR leaders and legal counsel,” said Miller.

Immigration Enforcement Efforts Expected to Increase,” Society for Human Resource Management (SHRM)

In an article published by SHRM on May 18, 2017, Montserrat Miller is featured prominently in an article discussing how immigration enforcement related to the workplace–raids, audits and site visits–are likely to increase under the Trump administration and how audits will focus on visa fraud, not just Form I-9 violations.

Webinars:

In June I did a webinar for the Georgia Restaurant Association entitled Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?  — this free webinar is of general applicability and I encourage everyone to take advantage of free legal advice.

Compliance News Flashes:

If you’re interested in receiving the Compliance News Flashes (latest edition) please email me at montserrat.miller@agg.com. This newsletter provides quick blurbs on compliance issues related to background screening and immigration.

Please enjoy this week’s Compliance News Flash with blurbs about the President’s travel ban, Delaware’s pay equity law and what it means for employers, and California’s antidiscrimination law restricting use of criminal history.

Click here to read the Compliance News Flash.

Happy 4th of July!

On Monday, June 5 from 2:00 to 3:00 pm EST I will conduct a free webinar on “Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?”  The webinar is sponsored by the Georgia Restaurant Association.  Much, if not all, of what I’ll be discussing regarding employers compliance with immigration laws during the hiring process relates to all employers and isn’t limited to restaurants.  During the webinar I will discuss the following topics:

  • Factors leading to a workplace investigation by DHS – ICE
  • How to prepare for a workplace investigation by ICE
  • How to respond to a Notice of Inspection
  • What happens during an ICE audit
  • The role of the Department of Justice in workplace investigations
  • Collateral consequences of workplace investigations

Click here to register.

Are you an owner/operator, HR professional, compliance director or manager, or in-house counsel and interested in learning more about the Employment Eligibility Verification form (the “Form I-9”)?  Here are some educational opportunities:

  • If you are local to Atlanta, Georgia I will be joining my colleagues to talk about “Hot Topics in Immigration under the Trump Administration” at our offices on May 17, 2017 from 4 – 6 pm.  The event is sponsored by the German American Chambers of Commerce. Click here to learn more and register for this presentation.
  • In June I will be presenting a webinar for the Georgia Restaurant Association entitled, “Workplace Investigations by the Dept. of Homeland Security – Is Your Restaurant Ready?”  The webinar is from 2 – 3 pm on June 5, 2017.  Click here to register.

I recently wrote an article for Construction Business Owner entitled “The Record-Keeping Mistake You Could be Making” that addresses the Form I-9 and provides practical tips and best practices with respect to the form.  To read the article click here.

Finally, U.S. Citizenship and Immigration Services (USCIS) will be issuing a new Form I-9 this summer, which will take effect in September 2017.  One reason being that the International Entrepreneur Rule requires changes to the form to allow parole status to serve as a basis for employment authorization. Read more in Friday’s Compliance News Flash by clicking here.

Any questions please email me at montserrat.miller@agg.com.