Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

In a last minute notice and delay, United States Citizenship and Immigration Services announced that it is postponing, until April 3, 2009, the implementation of a new I-9 form and a revised list of acceptable documents to determine employment eligibility.  (For background, you can find my most recent post on the form here.)

The new forms were to go into effect today, February 2, 2009. Instead, it has instructed employers to continue to abide by the old rule and use the old form.

USCIS released a press release late last week in which it indicated that it was reopening the public comment period for 30 days. You can find the release here. 

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UPDATE 2/2/09 - On late Friday, January 30th -- after this post had been published -- USCIS announced that it was delaying implementation of the rule by at least 60 days (or April 3, 2009). See new post here. 

As if human resources professionals didn't have enough on their plate this month (with changes to the ADA and FMLA), Groundhog Day will bring about another change. Although I've covered it before, it is important for employers to understand because it will affect employers of all sizes, regardless of whether they are in Connecticut or beyond.  

The U.S. Citizenship and Immigration Service has revised the I-9 Forms and modified the list of documents that are acceptable to prove identification.  The form should be used starting February 2, 2009 for all new hires and can be downloaded here.  Employers will have to use the revised Form I-9 for all new hires and to re-verify any employee with expiring employment authorization.

CIS's website summarizes the changes to the acceptable documents list here:

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the interim final rule will significantly improve the security of the employment eligibility verification process.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.

The rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.  

Various other blogs have summarized these changes as well, including the Pennsylvania Labor & Employment Blog, World of Work, and The Word on Employment Law. 

Until February 2nd, employers can continue to use the current I-9 forms.

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One of my new favorite "undiscovered gems" on the Internet, is Connecticut Judicial Branch Law Libraries' Newslog.  It is a site maintained by the librarians with daily entries to help people stay informed about "recent legal developments, legal practice tools, and law library resources". It's another example of how librarians are adapting to new technology and providing a helpful resource. 

And best of all, they have added RSS feeds to allow readers to "subscribe" to it.  (If you don't know what a "feed" is, see my easy-to-read post on the subject here.)

One of the entries that caught my eye recently was a research memo prepared by the Office of Legislative Research that discussed what the Connecticut laws are regarding employers who hire illegal immigrants.  The issue arises out of a law that Arizona passed last year that provides for extreme penalties to employers who hire illegal immigrants. 

So what does Connecticut say on the subject? Well, the memo points to Conn. Gen. Stat. 31-51k, which has been on the books for 35 years, as the applicable law:

Since 1972, Connecticut law has penalized employers who knowingly employ aliens not entitled to lawful residence. A first offense is punishable by a fine of $ 200 to $ 500. Any subsequent offense is a class A misdemeanor, punishable by a fine of $ 2,000, imprisonment for up to one year, or both.

But not so fast. 

As the OLR memo goes on to state, that law is likely preempted by the 1986 Federal Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” 8 U.S.C. 1324a(h)(2).  Thus, even with a Connecticut law on the books, it probably has no real effect anymore because of the federal law "preempting" it. (Why have the state law then still on the books? That's a good question for another day.)

The memo concludes by stating that the Arizona law is different because that state statute deals with a business license, which is exempted from preemption. 

With no action on any immigration-related bills in Connecticut this session, Connecticut employers should continue to educate themselves on the requirements of IRCA in dealing with illegal aliens. The Department of Labor's website is a good place to start and there are additional materials located here. But the enforcement of laws relating to the hiring of illegal aliens has also been picked up by the Department of Homeland Security and even Connecticut has its own Alien Labor Certification Unit. It is an area filled with risk and employers should continue to tread carefully.

Lastly, on a lighter note, what post on alien workers, would be complete without a link to the classic Genesis song "Illegal Alien". So, on this Friday, a link to the deliciously tacky video is below:

 

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The latest news trend has been to report that wage & hour claims are the new "in" lawsuit filed by employment attorneys.  However, the cost of bringing such a lawsuit may still be onerous for some employees.

That's where the state's legal services organizations routinely fill the gap by offering their services free to people in need of an attorney.  Two new federal lawsuits filed on the same day last week by two different legal services groups in the state, show that these groups are not afraid to tackle employment issues and are doing so with increased frequency. 

(As always, readers are cautioned that the complaints contain mere allegations, not proven facts.)

In Morales v. Cancun Charlie's Restaurant, the Jerome N. Frank Legal Services represents a kitchen worker for a popular Milford restaurant.  (The Jerome N. Frank Legal Services organization is run by the Yale Law School.)  The Complaint alleges that the employee regularly worked over 100 hours per week and did not receive overtime.  The Complaint also alleges that he did not receive the appropriate minimum wage.  No response has yet been filed.

This is not a one-time gig for the Yale Law School legal services group.  For example, last month, the group brought a nearly identical claim against another Connecticut restaurant, the Mianus River Tavern, on behalf of two workers. Although the restaurant closed earlier this year, the Complaint alleged that these two workers did not receive any overtime for their work over the years. 

The Complaint in Godoy v. D&S Remodeling, LLC contains very similiar allegations as well and was also filed last week. Brought by Connecticut Legal Services , on behalf of 12 employees, the lawsuit alleges that these laborers for a construction company did not receive their wages as promised by the employer. The complaint also alleges that overtime and minimum wages were not paid for these individuals at various times.  No response by the employer has been filed yet either.

Will the employers raise as a defense the possible undocumented status of the employees? (The Complaints are silent as to whether these workers were authorized to work -- though no inference should be drawn on this without additional facts.)  The law on this is far from resolved. In 2002, the Supreme Court in Hoffman Plastic Compounds, Inc. v. NLRB (U.S., No. 00-1595, 3/27/02), determined that the National Labor Relations Board ("NLRB") could not award backpay to undocumented aliens for violation of the National Labor Relations Act ("NLRA") But the Department of Labor and other groups have suggested the the law is different for violations of federal discrimination laws and the Fair Labor Standards Act ("FLSA"). 

In any event, these new lawsuits should continue to serve as a cautionary tale for service industry companies in Connecticut such as restaurants and constructuion companies.  The overtime laws are, what they say they are.  Ensuring strict complaince with the law will remove lots of headaches down the road.  Keep good records, treat employees fairly and fix past mistakes where necessary.

While lawsuits involving the Legal Services groups may not "feel" like the typical employee-side attorney, they have the resources and the energy to ensure that these cases proceed like an ordinary lawsuit. These lawsuits should not be taken lightly. 

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When a new employee starts, there's normally enough paperwork to fill a room.  One of those forms is the I-9 form issued by the United States Citizenship and Immigration Services (USCIS), formerly INS.  What does the I-9 form check? It checks the new hire's employment eligibility -- in other words, is the person legally allowed to work in the United States. 

Late last week, USCIS updated the form, which applies to both Connecticut and national employers, for the first time in a while.  In addition, it updated the companion handbook for employers, which includes instructions on how to complete the form.  You can download the form here.  The documents are also available on the USCIS's website and additional information is available for employers here. 

When do employers need to use this new form?

USCIS urges employers to begin using these new forms immediately; however, USCIS has also indicated that employers can use the old form I-9 until December 7, 2007.  Certainly, it appears that employers should considering using the new form as soon as possible, and no later than December 7, 2007. 

What changes does the form make?  There are several, but here are a few noteworthy ones as noted by the Pennsylvania Employment Law Blog. 

• Five documents have been removed from List A of the List of Acceptable Documents:
  • Certificate of U.S. Citizenship (Form N-560 or N-561)
  • Certificate of Naturalization (Form N-550 or N-570)
  • Alien Registration Receipt Card (I-151)
  • Unexpired Reentry Permit (Form I-327)
  • Unexpired Refugee Travel Document (Form I-571)
• One document was added to List A of the List of Acceptable Documents:
  • Unexpired Employment Authorization Document (I-766)
• Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.
• Employers may now sign and retain Forms I-9 electronically.

The changes to this form may not be the most exciting development in employment law, but considering that every new hire must fill one out, it is important for employers to understand them. Even more important, employer should start using this new form and make sure that the form is filled out correctly.

(H.T. Ohio Employer's Law Blog)

UPDATE: The new forms go into effect December 26, 2007.

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Late today, a California judge granted a preliminary injunction barring the government from distributing letters to employers notifying them of social security number discrepancies.  These are known as "no-match" letters.  The order also prevents the government from enforcing a rule that would have required employers to terminate employees whose discrepancies weren’t resolved within 90 days.

The New York Times does a good job summarizing the decision. 

Judge [Charles] Breyer chastised the Department of Homeland Security for making a policy change with “massive ramifications” for employers, without giving any legal explanation or conducting a required survey of the costs and impact for small businesses.
......

If allowed to take effect, the judge found, the rule could lead to the firing of many thousands of legally authorized workers, resulting in “irreparable harm to innocent workers and employers.”
....

Judge Breyer found that the Social Security database that the rule would draw upon was laden with errors not related to a worker’s immigration status, which could result in no-match letters being sent to legally authorized workers. “There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days,” even if they are legal, he wrote.

Even though the decision is in California federal court, the injunction apparently applies nationwide. In other words, the order enjoins the Social Security Administration from sending notifications to approximately 140,000 employers across the country notifying them of the new rule, which could affect about eight million workers.

Thus, Connecticut employers -- for the time being -- should not be concerned about the key provision in the new "no-match" rule but should stay tuned for additional developments as the case progresses.  Of course, that does NOT mean that employers can ignore immigration rules; the standard verification rules still apply.

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