Friday, May 24, 2013

New form I-9 in effect now

A new official revised Employment Eligibility Verification Form I-9 is available (and required) for employers to use now, with a revision date of 03/08/13 located on the bottom left-hand corner of the form.

Employers should begin using this new form immediately. The new form and the instructions are available for free online at DOL.gov.

The key revisions to Form I-9 are:

  • Additional data fields, including the employee’s foreign passport information (if applicable) and telephone and e-mail addresses; and
  • Revising the layout of the form, and expanding the form from one to two pages (not including the form instructions and the List of Acceptable Documents).
A 60-day grace period has been provided, so that prior Form I-9 versions (08/07/09) and (02/02/2009) will no longer be accepted after May 7, 2013.

A Spanish-language version of the new Form I-9 and instructions is available for use in Puerto Rico only (although it can be used elsewhere as a guide for employee translation purposes). 

Employers are required to maintain Forms I-9 for as long as an individual works for the employer and for the required retention period for the termination of an individual’s employment, which is either three years after the date of hire or one year after the date employment ended, whichever is later.

Failure of an employer to ensure proper completion and retention of Forms I-9 may subject the employer to civil monetary penalties, and, in some cases, criminal penalties.

Employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies.

A new 70-page Employer Handbook regarding the I-9 form is also available at the Department of Labor website.

NLRB employee union rights poster rule thrown out in court

I wrote last year about a controversial new rule by the National Labor Relations Board (NLRB) requiring private employers to post in their workplaces an 11x17-inch poster advising employees of their rights under federal law to form unions, strike, picket, etc. Under the rule an employer’s failure to post the required notice would have constituted an unfair labor practice.

The rule, enacted on August 30, 2011, had been expected to apply to nearly 6 million employers in the U.S., the great majority of which are small businesses. It never went into effect because litigation was promptly filed by several business groups challenging its validity.

As an update I can report that an important federal appellate court has just found that the NLRB acted illegally in enacting this rule, which the court ordered vacated.

On May 7, 2013, the Circuit Court of Appeals for the District of Columbia in Washington, D.C. found, in the case of National Association of Manufacturers v. NLRB, that Section 8(c) of the National Labor Relations Act precludes the Board from finding non-threatening employer speech to be an unfair labor practice, or evidence of an unfair labor practice, and that the Board’s new rule violated both prohibitions. The decision was heavily colored by First Amendment free speech principles, but was based on federal labor law and not on constitutional grounds.

“[T]he Board’s rule requires employers to disseminate [government] information, upon pain of being held to have committed an unfair labor practice,” wrote Senior Judge A. Raymond Randolph for a unanimous three-judge panel.  “But that difference hardly ends the matter. The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”

“How … can it be an unfair labor practice,” continued Judge Randolph, “for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, Section 8(c) necessarily protects—as against the Board—the right of employers (and unions) not to speak.”

In another, similar lawsuit, the United States District Court for the District of South Carolina ruled last year that the Board lacked authority to promulgate the rule. See Chamber of Commerce of the U.S. v. NLRB, 856 F. Supp. 2d 778 (D.S.C. 2012). The appeal in that case is now pending before the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. 

It may well be that the U.S. Supreme Court will need to review this issue. But for the time being employers may ignore the poster rule until further notice. 

EEOC issues new guidances on disability discrimination at the workplace

The U.S. Equal Employment Opportunity Commission (EEOC) has issued four revised guidance documents regarding protection against disability discrimination, pursuant to the goal of the agency's Strategic Plan to provide up-to-date guidance on the requirements of antidiscrimination laws.

The documents address how the Americans with Disabilities Act (ADA) applies to job applicants and existing employees with cancer, diabetes, epilepsy, and intellectual disabilities. These documents are available free online on the agency's website at:

"Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability," said EEOC Chair Jacqueline A. Berrien. "Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."

The revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA, effective since January 1, 2009) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.