I-9 Violations Cost Employers $1100 Each

One of your first responsibilities upon hiring a new employee is to complete an I-9 Form (Employment Eligibility Verification). The  I-9 form is intended to verify an individual's identity and eligibility to work in the United States. There are specific rules concerning when and how the I-9 form must be completed. Failure to properly complete and retain the I-9 as required by law may result in fines of up to $1,100 per violation.

The following are answers to some of the most common I-9 questions:

Q: What is the deadline for completing the I-9 for a new hire?

A. Section 1 of the I-9 form must be completed by the end of the employee's first day of work for pay. Section 2 must be completed within 3 business days following the first day of work for pay. For example, if an employee begins work on a Monday, Section 2 of the form must be completed by Thursday.

Q: Can I specify which documents I will accept for I-9 purposes?

A. No. The employee has the right to choose which documents to submit, provided they are on the I-9's list of acceptable documents (a complete list can be found on the last page of the I-9 form). Employees must present documents that establish identity and work authorization. This means either: one document from List A; or one document from List B and one document from List C.

Note: If you participate in E-Verify, you may only accept List B documents that bear a photograph.

Q: Am I required to photocopy an employee's I-9 documentation?

A. In general, there is no requirement for employers to make photocopies of the documentation provided by an employee to establish his or her identity and work authorization. However, if you do retain copies, you must do so consistently for all new hires. Photocopies should be kept with the employee's I-9 form.

Note: If you participate in E-Verify and the employee presents a document used as part of Photo Matching (currently the U.S. passport and passport card, Permanent Resident Card, and the Employment Authorization Document), you must retain a photocopy of the document.

Q: Can I accept a photocopy of a document? How about an expired document?

A. Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate. In addition, you cannot accept expired documents for I-9 purposes.

Q. What is my responsibility concerning the au­thenticity of documents presented?

A. You must examine the document(s) and if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them.

Q: Are the document requirements different for minors?

A. If a person under the age of 18 cannot present an identi­ty document (i.e., a document from List B), he or she may establish identity if:

• The parent or legal guardian of the minor employee completes Section 1 and writes “Individual under age 18” in the signature space;
• The parent or legal guardian completes the Preparer and/or Translator Certification block; and
• The employer enters “Individual under age 18” under List B and records the List C document the minor presents.

Note: Even though the minor is not required to present an identity document if he or she does not have one, he or she must still present documentation that establishes work authorization.

Q: How long am I required to retain the I-9?

A. I-9 forms must be retained for at least three years or for one year following the employee's separation from the company, whichever is later. For example, if an employee retires from the company after 20 years, you must retain his or her I-9 form for a total of 21 years from his or her date of hire.

Q: I'm rehiring a former employee. Do I have to complete the I-9 again?

A. If more than three years has passed since the individual initially completed the I-9, he or she must complete a new I-9. Otherwise, you may re-verify their employment eligibility by completing Section 3 of the form.

Q: What do I do when an employee's employment authorization expires?

A. When an employee's employment authorization document expires, you must re-verify his or her employment authorization prior to the date of expiration using Section 3 of the I-9 form. The employee must present an acceptable document that shows either an extension of his or her initial employment authorization or a new employment authorization. If Section 3 has already been used for a previous re-verification or update, use a new I-9 form. If a new I-9 is used, write the employee's name in Section 1, complete Section 3, and retain the new I-9 with the original.

Note: If the version of Form I-9 that was used for the employee's original verification is no longer valid (i.e., a revised/updated version of the I-9 form has since been released by the USCIS), you must complete Section 3 of the cur­rent I-9 form upon re-verification and attach it to the original I-9.

Not all expired documents require re-verification. The following expired documents need not be re-verified: a U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired during employment.

Q: What do I need to do if an employee's name has changed?

A. While you're not required to update the I-9 form when an employee changes his or her name, the United States Citizenship and Immigration Services (USCIS) recommends that you note any name changes in Section 3.

You may, but are not required to, take steps—such as asking the employee for the basis of the name change—to be reasonably assured of the employee's identity and the authenticity of the name change. Additionally, you may ac­cept evidence of the name change if provided by the employee and keep it with the employee's I-9.

Q: A new hire presents documentation verifying that the he is authorized to work in the United States, but the employee's employment authorization is set to expire in 30 days. Can I refuse to hire the employee because of this?

A. No. An employer is prohibited from refusing to hire an individual solely because his or her employment authorization has an expiration date. If an employee's employment authorization expires during his or her employment with you, you must re-verify employment eligibility by completing Section 3 of the I-9 form, or if Section 3 has already been used for a previous re-verification or update, use a new I-9. Re-verification must occur no later than the date in which employment authorization expires.

Q: A company and its employees are acquired by another company. Is the acquiring employer required to complete I-9 forms for these employees?

A. Employers who have acquired another company or have merged with another company have two options:

• Option A: Treat all acquired employees as new hires and complete a new I-9 form for each individual. Enter the effective date of the acquisition or merger as the date the employee began employment in Section 2 of the new Form I-9; or
• Option B: Treat acquired individuals as employees who are continuing in their uninterrupted employment status and retain the previous owner's I-9 forms for each acquired employee. Note that the acquiring employer would be liable for any errors or omissions on previously completed I-9s.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls, SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com.

Piercings & Tattoos: Addressing Body Art in a Dress Code Policy

Until recently, tattoos were popular among just a few select groups and piercings were typically limited to the ears. But, times have changed. Now, tattoos and piercings, also known as body art, are being worn all over the body by all demographics.

The increased prevalence of body art can create a conflict of interest in the workplace since many employers consider visible body art to be inappropriate. A well-crafted dress code policy can be an effective means for dealing with the issue. 

The following are 9 guidelines for addressing body art in a dress code policy: 

1.    Base the policy on your business needs. When developing a dress code policy, it's important to consider company culture and the image that you want to project to clients, the public, as well as current and potential employees. As with all policies, your dress code should be based on legitimate business needs.  

2.    Evaluate possible restrictions. In general, employers have a lot of latitude in imposing restrictions on body art. After considering company culture, you will want to decide what you deem to be appropriate and inappropriate for your workplace. For instance, will you permit visible body art, or will you require employees to cover tattoos and piercings? You might also decide that you want to place different restrictions on employees who have contact with the public versus for those who don't.

3.    Consider state and federal anti-discrimination laws. Employers are required to provide a reasonable accommodation for an individual's sincerely held religious beliefs or practices, absent undue hardship. Since some religious practices involve tattoos and/or piercings, employers may be required to provide a reasonable accommodation for an employee's body art. Although employers have broad discretion in creating and enforcing dress code policies, they must be sure to provide a reasonable accommodation as appropriate and avoid policies that are significantly more burdensome on a protected class of employees.

4.    Provide examples of inappropriate body art. However stringent you decide your policy will be, it's important to provide examples of acceptable and unacceptable forms of body art. For instance, graphic, violent or otherwise offensive tattoos should never be visible. Encourage employees to ask questions if they have any doubts with regard to what is and is not appropriate.

5.    Provide guidelines for covering body art. If you wish to restrict visible tattoos and/or piercings, consider requiring that employees conceal them. Most body art can be covered with some type of clothing. For example, an employee with a tattoo that runs the length of her arm can conceal the tattoo by wearing a long-sleeve shirt while at work.

6.    Promote safety.  Identify jobs in which body art may pose a safety risk and establish safety guidelines as appropriate. For instance, employees who work with equipment should be required to remove jewelry, including piercings, prior to beginning their shift. 

7.    Explain the reasons for adopting the policy. Employees who have body art most likely see it as a form of self-expression and may initially object to any sort of restrictions. Explaining your business reasons for adopting the policy may help when implementing it. In doing so, it is important to communicate that the policy is part of your efforts to maintain a professional and safe working environment.

8.    Consider the effect on recruiting. If you do impose restrictions, ensure that your policy still gives you the flexibility to recruit and retain qualified employees. After implementing your policy, check to see if it has resulted in higher turnover, lower employee morale, or greater difficulty in recruiting talented workers.

9.    Be consistent.  Establish procedures for enforcing your dress code policy and train supervisors how to enforce it. Remind supervisors that they have a duty to enforce all policies consistently, regardless of their views on body art.

While body art has grown in popularity, employers may have legitimate business reasons for establishing restrictions on their visibility within the workplace. Unless otherwise prohibited by law, several options are available for addressing body art, including banning inappropriate body art, prohibiting employees with regular customer contact from having visible piercings and tattoos, or requiring all employees to conceal their body art.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com

Important Considerations when making Layoff Decisions

During these turbulent economic times, many companies are starting to weigh the pros and cons of scaling down their workforce. When money is tight, employers often look to their biggest expense – their employees – in order to cut costs. Expenses relating to employee wages, benefits, and other employee overhead can have a significant impact on the bottom line.

Because layoff decisions aren’t often as cut and dry as other types of terminations, many employers faced with the decision are challenged with some tough questions related to the process; questions like, “How do we decide who to layoff and who to keep?” or "Which state agencies must be contacted?" and “What legal risks should be considered?”

The steps outlined below will help to answer some of these very questions and provide guidelines to follow when faced with a layoff situation:

1.    Consider the alternatives. A knee-jerk reaction may result in a quick layoff and a quick buck, but it may not be the best solution long-term. Before making a layoff decision, always consider the alternatives. Layoffs should typically be a last resort, after other cost-cutting measures don’t pay off. Work sharing, for example, is one option that may help the company save some money and still allow employees to retain their jobs. Work sharing allows two employees to share the responsibilities of a full-time employee. Company-wide pay cuts may be another feasible alternative to a layoff. Although not appealing to most employees, for some, it’s better than having no job at all. A reduction in pay works best if it is shared by all employees, including management. Another option is to offer those nearing retirement exit incentives if they choose to resign early. Employers want to be cautious with this approach, however, to avoid claims of age discrimination.

2.    Layoff criteria. It is recommended that prior to layoff employers develop objective and justifiable criteria for selecting employees to let go. Some factors you may want to consider in making a layoff decision include seniority, job performance, leadership potential, and one’s overall value to the company. Just remember, any decision you make must be supported by a legitimate business need.

3.    Seniority. When seniority is considered to be the criteria for making layoff decisions, an employee’s tenure will determine his or her susceptibility to a layoff. Although length of service is recommended to be part of the layoff decision, it should be coupled with other factors such as an employee’s performance history.

4.    Performance and skills. The knowledge, skills and abilities (KSA’s) needed for a company to survive after downsizing, and to ultimately remain competitive in the marketplace, may also help guide a layoff decision. Competencies such as resiliency, leadership and organizational commitment, for example, may all be particularly valuable to the company. It may be wise to retain employees possessing the skill sets that are desired company-wide. In addition to specialized skills, job performance is often used to make layoff decisions. When performance is used during the decision making process, be sure to review past performance appraisals and other records of performance history before making a layoff decision.

5.    Voluntary layoffs. To avoid making the difficult decision themselves, some employers offer “voluntary layoffs” by informing employees of their options. For example, an employer may approach their employees and offer them to either remain with the company and take a pay cut or allow them to resign and take a severance package. Offering attractive exit incentives, such as severance pay, continued health insurance, and pay for unused paid time off, may encourage employees to make the decision to leave the company voluntarily. However, this approach may also have some drawbacks; most notably the potential for star employees to take you up on your offer.

6.    Severance packages. Although employers typically have no obligation to offer severance packages to exiting employees, some employers may decide to. Severance pay usually equates to a week or two of pay for each year of service and can be provided in a lump sum or paid over a period of time. In some instances, a severance package may also include other extended benefits such as continued health insurance or outplacement assistance.

7.    Outplacement services. Employers may want to consider providing affected employees with outplacement services. These services are designed to help terminated employees prepare for a new job and typically provide assistance in resume writing, interview skills, job placement, and career counseling.

8.    Ensure employees are informed. Employers can help make the transition between jobs a bit easier by providing employees with helpful information on income support assistance programs such as unemployment compensation, and health insurance continuation options, such as COBRA.

9.    Paychecks. Each state may have their own requirements relating to issuing an employee’s final paycheck. In some states, employers may be required to provide employees their final paycheck at the time of layoff; other states may allow employers to provide the final paycheck at the next scheduled payday. Check your state requirements in the Layoffs section of our State & Federal Laws database.

10.  Legal considerations. As with any employment decision, employers want to tread carefully before following through with a layoff. To avoid discrimination claims, all decisions should be made based on objective criteria and supported with documentation. It’s recommended that equal employment opportunity (EEO) implications are considered in order to ensure that employees of a protected class (i.e., minorities, those over the age of 40, the disabled, or veterans) are not disproportionately impacted by a layoff decision. Further, when large number of workers are laid off at once, state law may require that employers notify their state Department of Labor. Check your state requirements in the Layoffs section of our State & Federal Laws database.

If downsizing is the best option for ensuring the company stays afloat during tough economic times, there are a variety of considerations employers should make in order to protect themselves. Establishing criteria that will be used when making layoff decisions should always be your first course of action, followed by considerations relating to whether or not to offer severance packages, outplacement assistance, or exit incentives.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com

Budget-friendly employee health & wellness initiatives: Reduce stress, save big!

If your employees are showing signs of fatigue, an inability to concentrate, and even depression, now is the ideal time to implement programs that are designed to reduce stress and increase employee activity, energy and happiness. By facilitating programs aimed at encouraging and promoting healthy lifestyles, you can further help employees out of that winter slump and ensure that they are more productive throughout the workday.

Did you know that health and wellness programs are good for your bottom line? Employers that implement a health and wellness program can expect to see an average of:

• 28% reduction in unplanned absences
• 26% reduction in health insurance costs
• 30% reduction in workers’ compensation costs
• $5 savings for every dollar spent

Concerned about upfront expense? Don’t worry—there are a variety of cost-effective ways you can implement a health and wellness program—with little to no planning necessary. Below are 10 wellness initiatives that can be implemented on any budget:

1.    Encourage healthy eating. If you have a cafeteria or offer food in your break room, consider providing healthier options. Swap high-fat chips, snacks and convenience food for fresh fruit, whole-grain crackers and low-fat dairy products. Save money by purchasing in bulk from your local wholesale food outlets, which usually offer business memberships. If you don’t have a cafeteria in the building, negotiating with local “healthy choice” restaurant owners and offering discounts or coupons is a good alternative. The restaurants won’t turn down the business, and employees will appreciate the thought—plus, they’re more likely to be alert after eating sensibly, avoiding that after-lunch slump.

Boost your savings: Consider having weekly luncheons in which your employees bring in homemade, healthy meals.

2.    Organize an exercise group. Organizing group workouts is a great way to provide employees with the support they need to stick with an exercise regimen. Consider coordinating 30-minute walks or similar recreational activities during lunch breaks. Employees will return to work feeling refreshed and rejuvenated, and on top of that it will likely help to foster bonds amongst co-workers.

Cost: Free. No money involved here; all your employees need is a good pair of walking shoes!

3.    Coordinate indoor activities. While it may be too cold to go outside for a walk, consider organizing some indoor activities or encourage your employees to hit the gym. Local gyms typically offer group discounts and can be a cost-effective alternative to individual membership options.

Boost your savings: Have employees bring in their favorite workout DVDs, clear a space and get moving!

4.    Organize health focus groups. Start employee circles that focus on specific health-related issues, such as obesity, smoking, or alcohol use. Have employees share their experiences—voluntarily of course—and work with one another to overcome any health-related battles.

Cost: Free. Employee support and advice is always free!

5.    Call in the professionals. Hire a wellness coach or fitness trainer to instruct employees on healthy living. Education is powerful in getting employees to change unhealthy habits.

Boost your savings: Call the local hospital to see if they offer free seminars on healthy living.

6.    Encourage doctor visits. Encourage employees to visit their physicians for regular check-ups. One way to accomplish this is by offering a group health plan that does not require co-payments for annual physicals.

Save money: When employees engage in preventative maintenance it will decrease your health insurance costs over the long-term.

7.    Make it fun! Make health consciousness fun. Have a friendly competition to see which employees can walk the most in a week or who can lose the most weight within a month.

Boost your savings: Institute your own version of “Biggest Loser” and reward the winner with a non-monetary reward, such as an extra day off of work.

8.    Promote family participation. Consider organizing health-related events that promote family participation. Company softball games, “fun runs”, or blood drives are all family-friendly events that many of your employees will find enjoyable. Employees will be more likely to stick to a health program when they have the support in as well as out of the office.

Cost: Free. Spending time with the family doesn’t cost a thing.

9.    Offer incentives to participate. If you find that not enough employees are getting involved, try offering rewards or incentives. For example, when Johnson & Johnson found that only 26% of their employees were participating in their exercise program, they decided to offer a $500 discount off medical insurance costs for those employees who took part. The result? The percentage of employees participating exploded – to over 93%!

Save money: Think about the long-term gain here: for every one dollar you invest into your health and wellness program you can expect to see a savings of approximately five dollars in reduced health care costs, workers’ compensation expenses and employee absences.

10.  Keep up with the program. Don’t just start the wellness program and leave the momentum up to your employees. Keep up with it; host new events and assess the program regularly. Some changes may be needed once you discover which portions of the program have been successful and which ones haven’t been.

Boost your savings: Keep things fresh and employees will be more likely to stick with the program, ensuring you have the time to reap the benefits.

The benefits of healthy lifestyle are not only seen by employees who participate in health and wellness programs, but by employers as well. By implementing these types of programs, employers will likely see a reduction in medical costs as well as increased employee productivity and morale.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com

HARASSMENT INVESTIGATIONS: A 12-STEP GUIDE

Once an employer learns about an allegation of sexual harassment, whether the complaint is formal or informal, there is an obligation to investigate. The goal of the investigation is to gather the facts of the case and to determine whether sexual harassment has occurred. If the investigation reveals that harassment has in fact occurred, employers must take action to end the harassment and prevent its reoccurrence.

Because of the importance and sensitive nature of these types of investigations, the process should be handled with extreme care and legal counsel should be consulted as needed. The following are 12 guidelines for conducting an effective sexual harassment investigation:

1.    Investigate promptly.  The investigation should take place as soon as possible after discovering that harassment may have occurred. When possible, more than one individual should be involved in the investigation, including acting as a witness during interviews.  Investigators should be instructed to remain objective and they must be trained on the investigative process.

2.    Create a file.  To begin, create a confidential file to document the complaint as well as the steps you take throughout the investigation process.  This file should be kept in a secure location separate from personnel files.

3.    Take all complaints seriously.  It's important that employees feel comfortable reporting any instance in which they believe harassment has occurred. This can be undermined if employees believe their complaints won't be treated with the proper attention. As such, employers must take every complaint seriously and avoid any retaliatory action against complainants.

4.    Prepare to interview appropriate parties. Prior to beginning the investigation, determine who will be interviewed and prepare a list of questions. Arrange to conduct the interviews in a private location and plan on obtaining signed written statements from each interviewee attesting to the information provided during the interview.

5.    Interview the accuser.  Those conducting the investigation should explain the investigation process, including their role as a neutral fact-finder. They should ask the complainant questions related to what happened, who was involved, when it happened, and how it has affected him or her. Other questions should address whether there were any witnesses or whether any other co-workers may have been subjected to the same or similar behavior. Take detailed notes and repeat them back to the complainant to ensure your understanding of the incident.

6.    Interview witnesses.  Start by informing the witness that you are investigating possible misconduct and ask if they have witnessed or have been subjected to any inappropriate conduct. If they have information pertaining to the alleged incident, ask for the specifics of what they observed before, during, and after. Avoid unnecessarily disclosing information pertaining to the investigation and stress the importance of cooperating fully as well as your commitment to maintaining confidentiality.

7.    Interview the accused.  Explain the accusations that have been made against the individual. Describe the investigation process and assure him or her that you are a neutral fact-finder and that no decision has yet been made with regard to the merits of the complaint. Ask the individual for his or her version of events and whether there are any witnesses or evidence that may corroborate it. Ensure that the individual provides a response to each of the complainant's allegations and advise the accused that retaliation against the complainant or any witnesses is forbidden.

8.    Gather evidence.  If there is any evidence of the harassment, such as emails, instant messages, or video surveillance, it's important to take all necessary steps to protect it. Implement appropriate security measures to ensure that evidence isn't destroyed or tampered with.

9.    Evaluate credibility.  Without a "smoking gun," the resolution of sexual harassment complaints often depends on the credibility of those involved in the investigation.  Some things to consider when determining one's credibility include the consistency of the statements made, demeanor during the interviews, any corroborative or contradictory evidence as well as the individual's behavior immediately following the alleged incident.

10.  Prepare the report. When preparing the report, include a chronology of events, a list of witnesses, the facts of the case, any evidence you may have been able to obtain, and the conclusions you have made regarding the incident(s) in question. You may also want to include recommendations for preventing this type of behavior in the future and, if you made a finding of harassment, any corrective action that will be taken against the responsible individual.   

11.  Take corrective action.  If the investigation reveals that sexual harassment occurred, take immediate and appropriate corrective action. The corrective measure may include training, job transfer, suspension, termination, or any other disciplinary action appropriate based on the severity of the conduct. When administering any type of correction action, it's important to be consistent with how you have handled similar situations in the past.

12.  Follow-up.  After you remediate the issue, it's important to check in with the victim occasionally to ensure the harassment has not resumed.  If necessary, take further corrective action and update the written report with any new developments.

Effective investigation procedures can not only help to uncover inappropriate conduct, but they can also serve to document your good faith efforts to respond to accusations of wrongdoing. When done with the necessary care, these investigations can be a powerful tool for preventing sexual harassment and maintaining a safe and productive work environment. Remember that all claims of sexual harassment should be taken seriously and you should consult with legal counsel as needed.

Trish Dougherty has greater than 25 years of successful leadership experience and is Senior Vice President & Principal for The Weston Group located in Sioux Falls,SD. Dougherty has a background in executive human resource management and is also a licensed Registered Nurse. Dougherty also served as an Officer in the United States Army Nurse Corps for 10 years. Dougherty travels and speaks nationally to assist small to medium size organizations with organizational effectiveness involving their most important asset – their employees. Trish can be reached at Trish@TheWestonGroup.com or 605-275-4747. www.TheWestonGroup.com