CgeorgeOver the last few months, I’ve had a few opportunities to use my legal background to help shed some light on refugee resettlement.

Back in February, I helped Connecticut lawyers introduce and sponsor a resolution at the American Bar Association Midyear Meeting calling for Congress to provide legal protections and sufficient funding for refugee resettlement.

And yesterday, I (along with many others within my firm, including my colleagues Brenda Eckert and Ashley Marshall) helped produce a program at my lawfirm on the issue. At various times during the year, we sponsor an “In Community” program that sheds light on issues impacting Connecticut.  The program yesterday focused on “Refugees and Resettlement: The Process and Protection Under the Law”.  My thanks to my firm for their leadership on this issue.

Among the speakers were Chris George, Executive Director, Integrated Refugee & Immigrant Services (IRIS) (pictured) and Kimberly May-Bailey, MSM, Director of Migration, Refugee and Immigration Services, Catholic Charities, Archdiocese of Hartford.

The work that they are doing in Connecticut to help assist refugees who relocate to Connecticut is nothing short of amazing and my thanks also to them to sharing the story of their work for us.

One of the interesting aspects to come out of the discussion was that fact that refugees are expected to become self-sufficient pretty quickly upon arrival.  To make that transition happen, the U.S. Government actually allows refugees to start work legally in the United States immediately upon arrival.  As the government tells refugees:

As a refugee, you may work immediately upon arrival to the United States. When you are admitted to the United States you will receive a Form I-94 containing a refugee admission stamp.  Additionally, a Form I-765, Application for Employment Authorization, will be filed for you in order for you to receive an Employment Authorization Document (EAD). While you are waiting for your EAD, you can present your Form I-94, Arrival-Departure Record, to your employer as proof of your permission to work in the United States.

For employers looking to help refugees, this is welcome news. Sometimes, employers may worry whether foreign nationals have sufficient documentation to allow them to work in the United States. With refugees, it’s clear from the outset that the answer is yes.

If you are willing to help, please contact IRIS or Catholic Charities.  There is always a need to help refugees.  As Chris George reminded us at the presentation, the Statute of Liberty reminds that that we take the tired and the poor and today’s refugees are among the most vulnerable we have in society.  Making sure that they can find work is one way to ensure that they can have a life to be proud of in the United States.

Part of an employer’s job is to review I-9 documentation at the start of employment, including Green Cards. But for employers, knowing what is real vs. fake, can be an issue.  My colleagues have prepared this update to one form of documentation that you should be on the lookout for.  The change is happening sooner than you might think.  

Understanding USERRA

U.S. Citizenship and Immigration Services (USCIS) just announced a redesign to the Permanent Resident Card, commonly known as the Green Card, and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. Although USCIS will begin issuing the new cards on May 1, 2017, both existing and new cards will be valid until their expiration date.

The new designs use enhanced graphics and fraud-resistant security features so that the resulting cards are more tamper-resistant and secure than those currently in use.  The new card designs demonstrate USCIS’ commitment to continue taking active measures to reduce the threat of document tampering and fraud. They are also part of an ongoing collaborative effort among USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

The Redesigned Cards

The new Green Cards and EADs will display the individual’s photo on both sides. In addition, there will be unique graphic images and color palettes (Green Cards will bear an image of the Statue of Liberty on a predominantly green palette and EAD cards will display an image of a bald eagle on a predominantly red palette).  Each will have embedded holographic images and neither will display the individual’s signature anymore. Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017 may still display the existing design format, as USCIS will continue using existing stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, please visit the Temporary Protected Status and American Competitiveness in the 21st Century Act web pages on uscis.gov.

Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date at all–these dateless ones will remain valid. Individuals who have Green Cards without an expiration date, however, may want to consider applying for a replacement card bearing an expiration date, so as to reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

So did everyone enjoy Thanksgiving? I’m still recovering from my vacation so in the meantime, my colleagues, Brenda Eckert and Ashley Mendoza, return today with a post about updated I-9 forms that all employers MUST start using in January 2017.  If you do any hiring, this post ought to be front and center to fulfill your obligations. 

eckertashleymendoza1On November 14, 2016, United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9, Employment Eligibility Verification (“Form I-9”).  This isn’t the first time it has done so but a new set of revisions means more changes for employers.

Established by the Immigration Reform and Control Act (“IRCA”), Form I-9 is used to verify the identity and employment authorization of all individuals, including U.S. citizens, hired for employment in the United States. All U.S. employers, regardless of size, must ensure proper completion and retention of Form I-9 for each new employee hired after November 6, 1986.

Beginning on January 22, 2017, employers must only use the revised Form I-9 version dated November 14, 2016. USCIS has allowed a grace period through January 21, 2017 when employers may continue to use the Form I-9 version dated March 8, 2013.  Both the revised Form I-9 and the prior version may be found on USCIS’ website.

Generally, the revisions made to Form I-9 were designed to make it more user-friendly, to reduce errors and to enhance form completion using a computer. Some of the most notable changes include:

  • Informational prompts are included on the form;
  • Employees only need to provide “other last names used” in Section 1, Employee Information and Attestation, rather than all “other names used”;
  • The employee certification in Section 1 is streamlined for certain foreign nationals;
  • There is an addendum page to enter multiple preparers and translators, when applicable; and
  • In Section 2, Employer or Authorized Representative Review and Verification, there is a dedicated area to enter additional information that employers have previously been required to notate in the margins of the form.

Further enhancements were made to the Form I-9 that will appear when completing it electronically on a computer. Users will see:

  • Checks to certain fields to ensure information is entered correctly;
  • Drop-down lists and calendars;
  • Instructions on the screen that users can access to complete each field; and
  • Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over.

The Form I-9 instructions have been updated to include a field-by-field guide to completion, and to address common issues that arise during completion. The revised instructions have also been separated into a distinct document from the revised Form I-9, in line with USCIS’ general practice.

While USCIS has indicated it will soon issue a revised M-274, Handbook for Employers, Guidance for Completing Form I-9, it has yet to do so. In the meantime, USCIS refers users to the revised Form I-9 instructions, found on its website for the most up-to-date information.

Notably, the list of acceptable documents that the employee may present in order to establish identity and employment authorization remains the same. 

While the Form I-9 may seem relatively straightforward to employers, its completion can be complex and the rules surrounding it constantly evolve, which leads to large fines and other penalties for not completing and retaining the forms correctly.

For this reason, we recommend reaching out to an experienced immigration attorney when questions arise regarding the Form I-9.

interviewOn Friday, I had the opportunity to speak to the Human Resource Association of Greater New Haven. My sincere thanks to them for the invitation.

The group asked me to talk about various legal traps employers face in the hiring process and solutions to avoiding those issues.  Here are some of the points we talked about.

  1. Don’t Ask Bad Interview Questions – This is, in some ways, the easiest area to fix.  There are several types of questions that are (mostly) improper for employers to ask, such as, “Are you disabled?” or “Are you planning on having kids soon?”.  I’ve talked about this before, but the key is to plan your questions ahead of time and know which areas to avoid.
  2. Train Your Managers – Now that you know which questions are proper or improper to ask, be sure to let your hiring supervisors who are doing many of these interviews what the rules are as well. Don’t assume that they will ask good questions. Provide some training to them to give them the do’s and don’ts in the hiring process.
  3. Check the I-9s.  This is an area that can be overlooked, but it is important for employers to review the proper documentation at the time of an employee’s hire. New employees who forget their identification papers in the hopes that you’ll forget about it in a few days are cause for concern. Beyond that, be sure to keep your documentation on this or you’ll be susceptible to a government audit.
  4. Comply with FCRA.   Do you use a third-party to do background checks on new hires? If so, be sure to follow the Fair Credit Reporting Act, which mandates certain documentation be provided to employees and certain procedures to be followed. I’ve talked about it in a prior post as well.
  5. Implement Restrictive Covenants at Hiring.  When you use restrictive covenants (such as non-solicitation provisions) for your key employees, be sure to have that paperwork done at the time of an offer, or, on the employee’s first day at work. While continued employment could be enough consideration in some agreements, making a new job contingent on the restrictive covenants is a near sure-fire way to make sure there is sufficient consideration.  Some states, like Oregon, even mandate it in their laws.

Late Friday, you might have (ok, I’m sure you did) missed a press release from the United States Department of Justice announcing a settlement with a staffing agency in California.

The charge? That a staffing company “discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).”

Now, I’m sure you all know (ok, I’m sure a few of you don’t know), that after an offer of employment is made, employers must require the to-be-hired individuals to present documentation to verify their eligibility to work in the United States.

But the DOJ charged that the “company’s staff required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documents during the employment eligibility verification process to establish their work authority. The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the employment eligibility verification process based on their citizenship status or national origin.”

I’ve previously discussed the I-9 form in some prior posts.  But in essence, employers need to use consistent practices at the start of employment.

The staffing agency is learning this issue the hard way:  Under the settlement agreement, the company “will pay $230,000 in civil penalties to the United States, create a $35,000 back pay fund to compensate individuals who may have lost wages due to the company’s practices and undergo training on the anti-discrimination provision of the INA.”  Oh, and the agency will be subject to government monitoring and reporting requirements for three years.

Employers have a lot to worry about when hiring new employees.  Add consistent treatment of new hires to the list.

The Connecticut Law Tribune’s quarterly supplement on Labor & Employment Law was published this week and as usual, it is chock full of articles of relevance to attorneys and employers. 

Many of the topics have been covered here in the blog, but the additional analysis and discussion on the topics make them useful.  You can view a list of all of them here, but I’ll highlight a few. 

  • As a reminder, new I-9 forms are now in place as of earlier this month. These forms should be used for all new hires.  As the article emphasizes: “The federal government’s recent shift in immigration enforcement away from workplace encounters with employees to rigorous review of employer paperwork turns a seemingly mundane form revision into rather significant news. Employers must exercise the utmost care in completing the forms lest they expose themselves to civil or criminal liability. ” 
  • Another article sees a growing trend of workplace surveillance videos.  But the article also reminds employers that “Connecticut law prohibits employers from using electronic surveillance devices to record or monitor employees’ activities in areas designed for health, personal comfort or safeguarding employees’ possessions, such as restrooms, locker rooms or lounges.”   I’ve discussed monitoring of employees in various posts, most recently here. 
  • Free speech claims are a topic I’ve covered here extensively. One of the articles looks at whether the Connecticut Constitution afford employees any more protection than the federal counterpart.  It highlights a Superior Court case from earlier this year that rejected that argument. 

Other articles tackle subjects such as who is a full-time employee under the new healthcare mandate and immigration law changes. It’s worth taking a look.

For lawyers, anytime there’s a change, it seems to be a big deal. But for employers, change is inevitable and part of business.  Indeed, if a new poster is required by employers, most employers simply shrug and order a new poster on the internet through a site like Gneil.com.

My colleague, Jon Orleans (fresh off his Title IX victory on behalf of a group of volleyball players — congrats Jon!), and I remind you of this fact in a quick update regarding FMLA and I-9 forms. So if you haven’t ordered some new posters yet, now’s a good time to do so.

Clean Up Your Posters

The Family and Medical Leave Act turned 20 last month.  For any Rip Van Winkles among our readers, the statute, enacted during the Clinton Administration, requires employers of at least 50 employees to provide up to 12 weeks of unpaid leave per year for a variety of health- and family-related conditions.

For employees, it has been an enormous benefit.  For employers, it can be an administrative nightmare

The U.S. Department of Labor marked the birthday by, among other things, issuing a new final rule implementing two expansions of FMLA protections enacted by Congress.  This blog previously covered the proposed changes a while back.

The FMLA now provides families of eligible veterans with the same FMLA leave currently available to families of military service members, and also enables more military families to take leave for activities that arise when a service member is deployed. The second expansion provides additional protections to airline personnel and flight crews.

Information concerning the new rule is available here.

In conjunction with the new rule, the DOL revised the mandatory FMLA poster that must be displayed by all employers subject to the Act.  The new poster is available here and should be posted now.

For additional blog posts about this subject, check out some background articles here, here and here.

One important item to note for Connecticut employers: Connecticut has not yet updated its regulations for the CTFMLA so be sure to consult with your lawyer before taking action just on the federal FMLA rule changes.  The new posters will still need to be put up, but you will need an individualized assessment of how the rule changes will impact your business directly. (Note too that the comparison posted on the CTDOL website of FMLA and CTFMLA regulations will now be slightly out of date.)

And while we’re pointing out new forms, be aware that the U.S. Citizenship and Immigration Service has issued a new version of the I-9, the form that must be used by employers to verify that any person hired is authorized to work in the United States.  The new form is available here.

Older versions of the form will not be accepted after May 7, 2013.  Note that it is not necessary to complete the new form for existing employees unless reverification is otherwise required; but the new form should be used for new hires going forward.

With all the snow piling up, there’s been a lot I’ve been meaning to get to but haven’t. So, it’s time to bring back the "Quick Hits" feature where I recap some of the employment law tidbits you might have missed recently.

Now, excuse me while I go find some dog sleds so we can get to work in this snow! 

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.

I don’t think it’s going out on a limb to suggest that 2009 brings about some of the broadest changes to employment laws in the United States this decade.  Socopyright Dan Schwartz, creative commons licenseme changes are already known, while others are forecasted to occur.  

Michael Moore, over at the Pennsylvania Labor & Employment Blog, has an excellent post from earlier this week, that details five items that should be added to an HR professional’s "To Do" list for the first quarter of 2009.  

  • ADA Amendments Act Compliance (effective 1/1/2009);
     
  • E-Verify Registration and Immigration Compliance (effective 1/15/2009);
     
  • FMLA Regulations Implementation (effective 1/16/2009) which require action by employers in the following areas:
    • Reviewing the regulatory changes and integrate them into your compliance program.
    • Using the new forms and poster.
    • Revising Employee Handbook provisions;
       
  • EFCA and RESPECT Act Planning; and 
     
  • Wage & Hour Self-Audit: As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims.

This list strikes me as a good place to start for many employers.  There’s going to be plenty of changes on the way but making sure that your FMLA and ADA policies and procedures are in compliance with the new laws and regulations should be a priority for most companies.

I’ve covered these topics in more detail in various posts, so use the "search" function to the left to find the topic that best suits your needs.