Archive for the ‘employee’ Tag

Completing Form I-9

Employers are required by the Department of Homeland Security (DHS) to complete a Form I-9 for newly hired or rehired workers within three days of employment. The purpose of this form is to document that each employee hired is authorized to work in the United States. Verification of employment must be presented by both Citizens and Non-Citizens. It is the employer’s responsibility to examine the documents an employee provides to determine the authenticity of the paperwork and record the information accurately on the form. If an employer representative is not available to review the original documents and sign the form, these documents must be presented to a Public Notary for verification.

Form I-9 consists of three sections:

Section 1 – Employee Information and Verification

Completing the Employee Section

Section one consists of the employee information including name, maiden name, address, date of birth, Social Security Number (SSN) and work authorization status. This section can be completed by the employee or by a translator on his/her behalf. However, the employee must personally sign the form. Newly hired employees must complete and sign section one no later than the first day of employment.  Section one should not be completed before the employee has accepted a job offer.

Image 1

 Name Fields: Include full legal name, first name and middle initials. For employees with two last names or a hyphenated last name, include both names in the Last Name field. The employee can include their maiden name or other legally recognized name in the Other Name Used field. If another legal name is not required, write N/A in the field.

Address Fields: Include the current resident address including street number and name, apartment number (if applicable), city, state, and zip code. P.O. Box addresses are invalid and only border commuters from Canada and Mexico may provide an international address. 

Date of Birth Field: Format the date of birth as mm/dd/yyyy.

U.S. Social Security Number Field: Include your 9-digit social security number if your employer participates in E-verify.

Email Address and Telephone Fields (Optional): Include your email address and telephone or write N/A if you choose not to include this information. The Department of Homeland Security may use this information to contact you in case there is a discrepancy between the information provided and government records.

  • Citizenship or Immigration Status Fields: Select the classification status that applies. View http://www.uscis.gov/files/form/i-9.pdf for a description of each classification status. Note: Employees who select the “An Alien Authorized to Work Until…” field and have an I-94 card must list the foreign passport number and country of issuance.        
Image 2

Click to Enlarge Image

 

Parents or legal guardians assisting minors (individuals under the age of 18) and certain employees with disabilities can review the Handbook for Employers: Instructions for Completing Form I-9 (M-274) on http://www.uscis.gov/files/form/m-274.pdf for guidelines about special procedures for establishing identity for these individuals.

The employer must examine the form to ensure all the required fields are filled and verify that the form is signed and properly dated by the employee. The authorized professional who is responsible for examining the documents should also sign section two.

Section 2 – Employer Review and Verification

Documents for Verifying Identity and Employment Authorization

Section two consists of fields related to verifying the authenticity of the documents presented to confirm employment eligibility and establish identification.

Image 3

Click to Enlarge Image

In the Introduction fields, the employer must enter the employee’s last name, first name, and middle initial to help identify the pages of the form in case they are misplaced.

In the fields directly following, the employer should record the employee’s identification and employment authorization document(s). Employees can choose to provide a document from section List A; or from section List B and List C. List A contains documents to confirm both identity and employment authorization; while, List B documents relate to identity only and List C documents verify employment authorization only. Employers cannot specify which document(s) an employee can use to complete the form and both parties must be physically present during the examination of the documents.

Generally, only unexpired, original documentation is acceptable. Exceptions to this rule include the use of a certified copy of a birth certificate and documents with extended expiration dates.

If the employee cannot provide un-expired versions of the required documents, an acceptable receipt can be provided in lieu of the documents listed in List A or List B and List C. The employee must present valid receipts within three business days of the employment or in cases of re-verification. However, receipts indicating an application for an initial grant of employment authorization or for a renewal of employment authorization are not acceptable.

Completing the Employer Section

The employer must physically examine these documents to ensure the requirements for List A or List B and List C are satisfied.

  • The employer should record the following: document title, issuing authority, document number and expiration date(s) (if applicable).
  • If the employee is a student or exchange visitor who presents a foreign passport with a Form I-94, the employer should enter the Student and Exchange Visitor Information System (SEVIS) number and program end date from Form I-20 or DS-2019.
  • In the field directly following entitled Certification, the employer should provide the date the employee begins work and the name of the authorized representative completing the form, along with his/her title, the date and the name and address of the organization.
  • In cases of re-verification, the employer must record the document title in section two under the section titled List A, List B, or List C as applicable. In the Document Number field, write the word “receipt” along with the document number. The Expiration Date field should include the last day the receipt is valid.
  • Once the receipt validation period expires, cross out the word “receipt”, the accompanying document number and expiration date. Record the number and other required information from the actual document presented. The changes must be authorized with initials and current date.   
  • Photocopies of the supporting documents are not required but if made they must be created for all new hires or re-verifications and retained. Employers must still complete section two even if photocopies are kept on file. Photocopies cannot be used in place of completing Form I-9.  

Find a List of Acceptable Documents located on USICS website.

 Section 3 –Updating and Re-Verification
Re-Verification Process

Employers are required to complete section three when updating and/or re-verifying Form I-9. Section three does not apply to employees who are U.S. Citizens or Permanent Residents. This section is completed when the employee indicates that he or she is an alien authorized to work until a certain date listed in section one of the form. Employers should reconfirm the employment authorization of every employee who has presented evidence of work authorization that contains an expiration date. Re-verification can be completed in section three of a new Form I-9 or section three of the original copy. If a new Form I-9 is completed, attach the new form to the original copy.

Image 5

Click to Enlarge Image

Block A: Record the employee’s new name if it is different from the name that appears in the previous sections.

Block B: Record the date of hire if the employee is rehired within three years of when the form was originally completed and the employee is authorized to work under the same basis as indicated previously.

Block C: Complete Block C if the employee’s previous grant of work authorization has expired, or if the employee is rehired within three years of the date this form was originally completed. Examine either items from List A or List C provided by the employee to verify work authorization. Record the document title, document number and expiration date (if applicable).

Authorization Block: Sign and date to attest that the employee is authorized to work in the U.S. based on the documents provided.

 
 
Storing and Retaining Form I-9

Employers must retain each employee’s completed Form I-9 throughout the individual’s employment. Once an individual’s employment ends, the employer must retain Form I-9 for either three years after the date of hire or for one year after employment is terminated. Form I-9 must be stored in a secure location to safeguard employee information. Typically, Form I-9 and the accompanying documents are stored via electronic means, micro-film format or hard-copy method. Regardless of the format, the U.S. Citizenship and Immigration Services (USCIS) recommends separating Form I-9 from other employee records in case of an inspection request. Before an inspection takes place, the employer will receive a written notice three days in advance to provide the documents.

Penalties

Violations for inaccurately completing or not completing Form I-9 can lead to civil fines, criminal penalties and debarment from government contracts. Civil violations include but are not limited to knowingly hiring or continuing to employ an unauthorized worker, failing to comply with Form I-9 requirements, committing or participating in document fraud, committing document abuse and accepting funds from employees as a guarantee for authorized status. In contrast, criminal violations are based on an employer’s pattern or practice of repeated violations. A list of monetary fines placed on each violation can be found on www.uscis.gov.

 

Advertisements

Employee or Independent Contractor: Employer Guidelines

Are you finding it difficult to differentiate between employees and independent contractors? Well accurately defining a worker’s classification status may be a more serious issue than you might have anticipated. The U.S. Department of Labor (DOL) released the 2012 proposed budget, which emphasized a strong focus on identifying employers who misclassify workers as independent contractors versus employees. The DOL requested an additional $46 million to support a multi-agency initiative with the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Claims (OFCCP) and the Occupational Safety and Health Administration (OSHA) to combat employee misclassification. In recent years, the DOL has “cracked-down” on employers for intentionally misclassifying employees as a means to escape payment of employment taxes, overtime compensation, and benefits.

 An employee is an individual, who is employed by one employer that provides training and control on how duties are performed. However, independent contractors operate under their own business name and may employ other workers to work under their direction. When a worker is classified as an employee, the employer is responsible for paying payroll taxes and overtime compensation, as well as complying with Wage and Hour law requirements such as providing meal periods and rest breaks and reimbursing workers for business expenses. Additionally, employers must cover employees under their worker’s compensation insurance, and are liable for payment of unemployment insurance, disability insurance and social security.

There is no universal system to differentiate between employees and independent contractors.

The DOL recommends using the “Economic Realities” Test. Defining factors are based on :
  • Degree of control in regards to the way work is done and the nature of control
  • Opportunities for profit or loss
  • Investment in the facilities and equipment of the business
  • Permanency or length of relationship with business
  • Degree of skill need to perform their job
  • Impact work performed has on scope of business
IRS uses the common law test known as the “Right-to-Control” Test
  • Level of instruction
  • Amount of training
  • Degree of business integration
  • Extent of personal services
  • Control of assistants
  • Continuity of relationship
  • Flexibility of schedule
  • Demands for full-time work
  • Need for on-site services
  • Sequence of work
  • Requirements for reports
  • Method of payment
  • Payment of business or travel expenses
  • Provision of tools and materials
  • Investment in facilities
  • Realization of profit or loss
  • Work for multiple companies
 Consequences of Misclassification
  • Misclassification of an Employee – If the employer mistakenly classifies an employee as an independent contractor, the employee can recover back pay, liquidated damages and attorney’s fees. According to the Fair Labor Standard Act (FLSA), employers are required to pay employees at least minimum wage (currently $7.25) for each hour worked. Employees must receive overtime compensation for all hours worked exceeding 40 hours in a workweek, at a minimum of one and a half times the regular pay rate. Employees have up to two years to seek recovery of back pay or three years if there is proof of willful FLSA violation by the employer.
  • Misclassification of an Independent Contractor– Employers could encounter financial consequences if the worker is classified as an employee instead of independent contractor. Employers could be paying unnecessary income tax, Federal Insurance Contribution Act (FICA) tax and Federal Unemployment Tax (FUTA) as well as overtime compensation and excessive benefit charges.
HR Best Practices
  • Perform a Classification Audit – A well executed classification audit will reveal gap areas that can potentially lead to costly legal disputes and government fines. Classification audits also serve as good faith evidence for compliance with FLSA.
  • Use IRS Form in case of Confusion in Determining the Status – When the status of a worker is unclear, employers are encouraged to complete IRS Form SS-8  and submit the form to the Internal Revenue Service (IRS). The IRS will review the facts and circumstances and officially determine the worker’s status. This form may be filed by either the business or the worker.
  • Seek External Resources – It may be best to seek the assistance of legal counsel or consult an HR outsourcing provider if  classification of  an employee’s status becomes too complex.