Hepatitis A – A Public Health Emergency: Employers Should Be Prepared

On August 1, 2019, Florida’s Surgeon General declared a Public Health Emergency to address the increase in Hepatitis A cases in Florida. From January 1 to July 27, 2019, there were two thousand and thirty-four (2,034) reported cases of Hepatitis A in Florida. That amount surpasses the number of cases reported for the entire year of 2018. Workers across various industries are not only at risk of contracting Hepatitis A, but also transmitting the virus to customers and/or co-workers. Before a worker is diagnosed, employers should be proactive and institute risk control and response measures.

Hepatitis A is a highly contagious disease that attacks the liver. Symptoms usually start within 28 days of exposure to the virus. People infected with Hepatitis A are most contagious from two weeks before onset of symptoms to one week afterwards. Of particular concern are food service workers; in Florida, approximately 5% of Hepatitis A cases have been identified as food service workers.

If a worker is diagnosed with Hepatitis A the health care provider that issued the diagnosis must immediately report to Florida’s Department of Health (“FDOH”) the name of the infected individual. The infected individual will be interviewed by FDOH, and then FDOH will work to identify close contacts of the ill person. Rest assured, this process includes the FDOH reaching out to the employer to ascertain if co-workers or customers will need to be notified of potential exposure.

Florida’s news media regularly reports the names and locations of business where infected individuals worked in the days prior to their diagnosis. Further, it is not uncommon to see social media posts about businesses with workers diagnosed with Hepatitis A. Therefore, employers should be ready to act with a communications plan in the event one of their workers is identified as having been diagnosed with Hepatitis A. Such a plan must consider the infected worker’s right to keep their health care information private. Often a quick and effective communication plan can minimize the potentially devastating consequences of being identified as an employer that has had workers diagnosed with the disease.

For more information of Hepatitis A and appropriate preventative measures see the Florida Health website. 

Steven D. Brownlee
sbrownlee@williamsparker.com
941-552-2567

FMLA: Forgetting Minutiae Lead to (legal) Actions (Part IV)

Resuming our journey through the complex maze that is the Family and Medical Leave Act, we turn now to address – through a series of questions and answers – important aspects of FMLA when employees are dealing with their own serious health conditions (when they cannot perform their essential job functions) or the serious health conditions of their spouses, parents, or children. Previously, we addressed aspects of FMLA leave (i.e., up to 12 weeks of unpaid leave during the year) for employees who are expanding their family through births, adoptions, or foster child placement.

So, employees are entitled to FMLA leave if they have a serious health condition?

Correct.

And, they can take leave when a spouse, parent, or child has a serious health condition?

Again correct. Employees can also take leave to care for their spouse, parent, or child with a serious health condition.

What about grandparents or siblings?

Generally, no. Employees are not entitled to FMLA to care for grandparents or siblings or cousins or really any other family member other than their spouse, parent, or child. However, if a grandparent acted in loco parentis (acts as a parent) to the employee before the employee was of age, then FMLA leave could be taken.

I noticed that you italicized the phrase “serious health condition” above, was there a reason for doing that?

Yes, we were trying to draw your attention to that phrase because it has a special meaning under the FMLA.

What does it mean?

It means an illness, injury, impairment, or physical or mental condition that involves (1) inpatient care, or (2) continuing treatment by a health care provider.

What is considered inpatient care?

Inpatient care means that the person receiving treatment has to stay overnight in a hospital, hospice, or residential medical care facility.  It also includes periods of incapacity or subsequent treatment that’s connect to the overnight stay.

And, what do you mean by “continuing treatment by a healthcare provider”?

That phrase refers to any of the following types of ongoing treatment: incapacity and treatment, pregnancy or prenatal care, chronic conditions, permanent or long-term conditions, and conditions requiring multiple treatments.

You did that italicizing thing again with the word incapacity.

Yes, we did.  That’s because the word incapacity also has a special meaning.

What is the special meaning for incapacity?

An incapacity means an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition, which lasts longer than three days.

Are there any limits on what’s included in the incapacity period?

Yes. To qualify for FMLA coverage, the incapacity must also involve:

  • Treatment two or more times by a health care provider, under the supervision of a healthcare provider, or due to a referral by a health care provider, within 30 days of the first day of incapacity; or
  • Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

So, does a period of incapacity require a visit with a health care provider?

Yes.

Who qualifies as a healthcare provider?

Health care providers include professionals who you would normally think about, like doctors of medicine or osteopathy (authorized by the State in which the doctor practices), podiatrists, dentists, optometrists, nurse practitioners, physician assistants, or clinical psychologists.

Is that all?

No. Under the FMLA, a healthcare provider can also include chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist), nurse-midwives, clinical social workers, or any healthcare provider that an employer or the employer’s group health plan’s benefits manager accepts to certifying for purposes of a benefit claim that the individual has a serious health condition.

Going back to the period of incapacity lasting more than three days, are there any additional requirements involved with that period?

There are. The first (and sometimes only) in-person treatment visit with a healthcare provider must happen within seven days of the first day of incapacity.

Can you have partial day incapacities that count towards that original three-day requirement?

No, partial days of incapacity cannot be combined to satisfy the requirement that the incapacity extend more than 3 days or 72 hours.

Can an employee receive FMLA leave if they schedule all of their routine physical exams over three days and miss three full days of work?

No. The treatment at issue does not include routine physical examinations, eye examinations, or dental examinations. The treatment protected by the FMLA is generally limited to examinations to determine if a serious health condition exists and evaluations of that condition.

You mentioned earlier that the requirement for continuing treatment by a healthcare provider includes treatment for pregnancy or prenatal care, right?

Yes, it does. However, a pregnant employee can still be entitled to FMLA leave if the employee does not receive medical treatment for the absence. For example, a pregnant employee unable to report to work because of severe morning sickness would be entitled to FMLA for that absence.

You mentioned that chronic conditions can be a qualify reason, what are those?

A chronic serious health condition is one which:

  • Requires periodic visits for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
  • Continues over an extended period of time (including recurring episodes of a single underlying condition); and
  • May cause episodic rather than a continuing period of incapacity.

How periodic must a visit be?

It must be at least twice a year.

Are there examples of conditions that may cause episodic rather than continuing periods of incapacity?

Yes, those types of conditions may include asthma, epilepsy, diabetes, and similar types of conditions.

So, diabetes can be considered a chronic condition for which employees may use FMLA leave?

Yes, if it requires in-patient care or if it requires an employee go to the doctor at least twice a year.

Now, what about permanent or long-term conditions, must there be active treatment for all covered absences?

No. Although the individual suffering from a permanent or long-term condition must be under the continuing supervision of a health care provider, that individual is not required to receive active treatment during each covered absence.

Are there any examples of these types of conditions?

Examples of permanent or long-term conditions that fall in this category include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

What types of conditions requiring multiple treatments would qualify for FMLA leave?

Either, restorative surgery after an accident or other injury; or a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The next post in the FMLA series will address the qualifying reasons arising from issues specific to military members and their families.

Special thanks to Associate John Getty for his assistance with this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Restrictions on Vaping and Texting Go Into Effect: Today is Gonna be the Day That the Florida Legislature Is Gonna Throw It Back to Employers*

By now you should’ve somehow realized that today (July 1, 2019) the amendment to the Florida Clean Indoor Air Act, which implements the 2018 constitutional amendment prohibiting vaping in the workplace, goes into effect.

Hopefully, businesses and employers realize what they have gotta do now that the use of e-cigarettes in indoor workplaces is prohibited. The word is on the street that indoor workplaces will become an oasis for non-smokers – who likely never really had a doubt that that the fire in the hearts of vaping employees would eventually go out.

Employers can no longer choose to allow employees to vape indoors. Those using e-cigarettes will now be relegated to designated smoking areas–-presuming employers provide smoking areas. Although we don’t believe any vaping employees will feel that great about this decision now, it is the law, and maybe it’s gonna be something that saves them.

Beyond that, all roads that employees have to drive are winding, and now all the lights from their cellphones won’t be blinding. Because, as of today, texting while driving has become a primary offense rather than being a secondary offense. There are many things that we’d like to say about this, but primarily, this means employee drivers can be pulled over for texting while driving without violating any other traffic law. Maybe, this will be a law that saves people.

Regardless, employers will need to throw it back to employees who are driving while working, and make sure that they somehow realize what they’re not to do. We don’t believe that any managers should refrain from training their subordinates and requiring employees to avoid texting-and-driving. That way, the managers can also be the ones who save their employee drivers and protect their employers’ businesses. Read more about the new texting law.

Both of these laws—after all—could have positive consequences on the health and well-being of workers and be the laws that save them.

* see ”Wonderwall” Oasis 1995

Special thanks to Associate John Getty for his assistance with this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

FMLA: Forgetting Minutiae Leads to (legal) Actions (Part III)

After providing a general overview of the convoluted maze that is the FMLA, explaining  which employers are subject to the FMLA, and describing which employees are eligible for leave, we now continue our journey by addressing when an employee can take FMLA.

Eligible employees of covered employers may take up to 12 workweeks of leave during any
12-month period for one, or more, of the following reasons:

1. The birth of the employee’s son or daughter, or to care for the newborn child.
2. For placement with the employee of a son or daughter for adoption or foster care.
3. To care for the employee’s spouse, son, daughter, or parent with a serious health
condition.
4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.
5. Because of any qualifying exigency arising out of the fact that the employee’s spouse,      son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status).

These reasons—along with a few others involving military service members that we will address in a future blog post—are known as “qualifying reasons” under the FMLA. Some of these qualifying reasons are straightforward while others involve important nuances. For today’s post, we’re going to address the issues that come up with points 1 and 2 above (the birth, adoption, or fostering of children) through another series of questions and answers.

I have an employee who qualifies for FMLA leave, and the employee is about to have a new child. What rights does that employee have?

As noted above, an employee who qualifies for FMLA can take up to 12 workweeks of leave during a 12-month period for the birth or care of a newborn child.

Does an employee have to take all the qualifying leave at one time?

It depends. An eligible employee may use intermittent or reduced schedule leave after the birth of a healthy child or placement of a healthy child for adoption or foster care, but only if the employer agrees.  If the employer does not agree, then the time off will be all at one time.

Does an employee need to take all of their FMLA leave for the birth of the child right after the child is born?

Not necessarily, an employee can take leave for the birth of a child any time up to 12 months after the child’s birth.

 Are both parents entitled to leave for the birth of their child?

Generally, both parents are entitled to leave for the birth of the employee’s child. However, if both spouses work for the same employer, the total combined leave taken by both spouses for the birth of the child or to care for the child after birth may be limited to a combined total of 12 weeks of leave during any 12-month period. In other words, both spouses have 12 weeks combined for the newborn child. Thus, the mother and father could both take 6 weeks each. Or the mother could take 9 weeks, and the father 3 weeks. Alternatively, if the mother takes 12 weeks, then her spouse would not be entitled to any FMLA leave.

Where both spouses use a portion of the total 12-week FMLA leave entitlement for the birth of a child, each spouse would be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes.

The foregoing is also true for the placement with the employee of a child for adoption or foster care. For purposes of the FMLA, a spouse includes a married husband or wife (husband or wife refers to the other person with whom an individual entered into marriage), which includes same-sex spouses.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The next FMLA post in this series will address the qualifying reasons involving an employee’s own serious health condition or the serious health condition of family members.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Planning for Hurricane Season: Employee Pay During and After a Storm

With the onset of the 2019 hurricane season and the effects of Hurricanes Michael and Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Healthcare employers also have ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s article, “Senior Living Providers: Are You Ready for Andrea, Barry, and Chantal?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Avoiding Errors in the Match Game: Responding to the Rising Number of “No-Match” Letters

Starting late last year and continuing on the heels of tax season, the Social Security Administration (SSA) has been sending employers Employer Correction Request Notices, also known as EDCOR notices or “no-match” letters. An example “no-match” letter is available at the SSA’s website. These “no-match” letters notify an employer that the information submitted on an employee’s W-2, such as the Social Security Number or SSN, does not match the SSA’s records. Even though it’s not conclusive evidence that an employee is not authorized to work in the United States, it can put an employer on notice of a possible issue, which can lead to potential compliance issues and liability under federal law. See our previous discussion here and here on recent Form I-9 compliance issues.

Of course, common discrepancies can also trigger a “no-match” letter, such as  unreported name changes, typos or input errors by the SSA, reporting errors by an employer or employee, errors in recognizing multiple last names or hyphenated last names, or identity theft.

In other words, “no-match” letters can arise because of simple administrative errors. Employers should not presume the “no-match” letter conveys information about an employee’s immigration status or authorization to work within the United States. Still, the “no-match” letters may also indicate that an individual provided false identification.

Employers must be cautious when dealing with a “no-match” letter. An overreaction—such as requesting excessive or unnecessary documentation from employees—can violate the anti-discrimination provisions in federal law, which generally prohibit discriminatory employment practices because an employee’s national origin, citizenship, or immigration status. Thus, an employer should not attempt to do any of the following after receiving a “no-match” letter:

  • Take any adverse employment action against an employee subject to a “no-match” letter, including—but not limited to—firing, demoting, cutting hours, reducing the wages of, or writing up such an employee;
  • Follow different procedures for different classes of employees based on the employees’ respective national origin or citizenship status;
  • Require the employee immediately provide a written report that the SSA verified the requisite information (primarily because the SSA may not ever provide such a report);
  • Immediately reverify the employee’s eligibility to work by requesting a new Form I-9 based solely on the “no-match” letter; or
  • Require an employee produce any specific I-9 documents, such as a Social Security card, to address the no-match issue.

The question then becomes: How should employer respond to a “no-match” letter?

Unfortunately, the letters usually do not identify the employees for whom the SSA finds there is a “no-match” issue. To determine which employees’ information is at issue, an employer must first register with the SSA’s Business Service Online website. Through that website, an employer can then compare the employee names and SSN information in its files against the SSA’s records to make sure the information was correctly submitted, and no typographical error occurred. If an employer determines it misreported the information, it can issue a correction through an updated IRS Form W-2C. An employer generally has 60 days from receipt of the “no-match” letter to issue a Form W-2C to make corrections if that is the cause of the “no-match.”

Should an employer determine that it properly reported the information, then the employer will need to further investigate and may want to seek guidance from counsel before taking further action.

John C. Getty
jgetty@williamsparker.com
(941) 329-6622

Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees

As previously reported, the U.S. Department of Labor issued a proposed rule addressing exemptions for bona fide executive, administrative, professional, and outside sales employees (the “white-collar” exemptions”) under the Fair Labor Standards Act. Presuming the rule goes into effect, the new minimum salary threshold for these employees will be $35,308 per year (or $679 per week).

Beyond changing the minimum salary threshold for the “white-collar” exempt employees, the DOL also proposed increasing the exemption threshold for a smaller category of employees: “highly-compensated” employees. Previously, any employee whose primary duty was performing office or non-manual work and who customarily and regularly performed at least one duty or had at least responsibility of a bona fide executive, administrative, or professional employee could be exempt–if the employee made at least $100,000 a year and received at least $455 each week on a salary or fee basis. In essence, the “highly-compensated” employees exemption combines a high compensation requirement with a less-stringent, more-flexible duties test in comparison to those used under the “white-collar” exemptions.

Like the DOL’s proposed changes to the “white-collar” exemption, the DOL’s proposed changes to the “highly-compensated” exemption does not alter the duties requirements. Rather, the DOL proposes an increase to the annual and weekly salary thresholds. But in this instance, the increase is substantial. The proposed new threshold jumps from $100,000 under the current rules up to $147,414, of which $679 must be paid weekly on a salary or fee basis. That is an approximate 50 percent increase, and it is about $13,000 higher than what had been previously proposed when changes were considered in 2016.

Now, despite the change raising eyebrows, one could question whether it would have significant impacts because most workers paid $100,000 or more often already fall into one or more of the other exemptions. The DOL itself acknowledges in the proposed rulemaking that it estimates only about 201,100 workers nationwide would become eligible for overtime due to this salary increase. In comparison, the DOL expects the “white-collar” salary change will impact approximately 1.1 million workers nationwide.

The common view remains that the new minimum salary thresholds will likely go into place later this year (2019) but likely no later than January 1, 2020. Although that later date is almost seven months away, that deadline is rapidly approaching. Hence, it is worth reiterating that employers should begin evaluating their staff to determine who, if anyone, may be affected and determine how to proceed. Similarly, this rule change provides employers an opportunity to audit all of their employees (even those unaffected by the proposed rule changes) to make sure each one is properly classified. And if they are not, employers can time any reclassifications with those made to meet the new rule changes to possibly minimize bringing attention to and potential liability for any past misclassifications.

In the meantime, the DOL will accept comments from interested parties until May 21, 2019 at 11:59 PM ET. The public will be able to provide electronic comments at regulations.gov (after searching for RIN no. 1235-AA20) or via mail to the address below (identifying in the written comment (1) the Wage and Hour Division, United States Department of Labor; and (2) RIN no. 1235-AA20).

Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue, N.W.
Washington, D.C. 20210

John C. Getty
jgetty@williamsparker.com
(941) 329-6622

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same! (Part II)

As we mentioned in Part I of this post, this year the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and other strategies to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA).

How do employers know if Homeland Security Investigations (HSI) has initiated an audit or administrative inspection of their businesses? The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer compelling production of Forms I-9 and frequently other supporting documentation such as payroll reports, a list of current employees, articles of incorporation, and business licenses. Employers have at least three business days to produce the Forms I-9, after which HSI will conduct an inspection for compliance following ICE’s inspection process, give the employer 10 days to correct technical or procedural violations, and assess applicable fines and penalties.

Form I-9 best practice tips for employers include:

  • Establish a uniform written Form I-9 compliance policy and train staff accordingly.
  • Avoid discrimination claims by educating staff on the appropriate way to verify documents and treat all job applicants the same regardless of their citizenship or immigration status or their national origin.
  • Put in place a “tickler” system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
  • Establish a best practice method for proper cataloging and retention of Forms I­-9—separate former and active employees’ Forms I-9.
  • Keep Forms I-9 organized and separate from general personnel files. Establish a consistent policy regarding obtaining and retaining copies of verified documents.
  • Purge old Forms I-9s that are past the retention period on an annual basis (three years from date of hire or one year after termination, whichever is longer).
  • Conduct routine formalized self-audits and document each internal audit, preferably with guidance from legal counsel.
  • Call legal counsel immediately if you are served with a Notice of Inspection as the time to respond is short and it is critical to submit well-organized documents only after receiving legal advice.
  • Do not consent to an immediate inspection if agents arrive without warning – employers have three days to submit documents.
  • Only submit what is requested – nothing extra.
  • Do not let agents take original records without retaining copies.
  • Do not allow agents to talk with any employees or company officers before contacting legal counsel.
  • If the U.S. Department of Labor (DOL) agents arrive for an inspection of Forms I-9 without notice, decline the inspection. They will notify ICE.  (Note – if DOL agents seek to inspect wage and hour or FMLA records, decline the inspection and contact your legal counsel to schedule it at a convenient time.)
  • If U.S. Department of Justice Immigrant and Employee Rights Section (IER) agents arrive for an inspection of Forms I-9 without notice or deliver notice of intent to conduct a worksite enforcement audit, call legal counsel immediately to help coordinate a response. See also IER’s Employer Best Practices During Worksite Enforcement Audits.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

No Fooling: DOL Proposes New Rule to Determine Joint-Employer Status

As a rule of thumb, skepticism is in order for any news blasted out on April Fool’s Day. For that reason, you could easily believe that the U.S. Department of Labor (DOL) was joining in the tomfoolery this year when it issued a new Notice of Proposed Rulemaking on April 1, 2019 to address joint employment under the Fair Labor Standards Act (FLSA), but, that wasn’t the case.

Through its April 1, 2019 notice, the DOL seeks to revise regulations on joint employment issues. A joint employer is any additional individual or entity who is equally liable with the employer for the employee’s wages, including minimum wages and overtime. Presently, the regulations state that multiple persons or companies can be joint employers if they are “not completely disassociated” with respect to the employment of an employee. The phrase “not completely disassociated” is not clearly explained in the regulations, which has led to thorny issues when dealing with the employees of subcontractors, franchisees, and similar relationships.

To address such issues, the DOL proposes a four-factor analysis that considers whether the employer actually exercises the power to:

  • Hire and fire an employee;
  • supervise and control an employee’s work schedules or conditions of employment;
  • determine the employee’s rate and method of payment; and
  • maintain the employee’s employment records.

The DOL indicates that there are other factors that should and should not be considered. It also clarifies certain business models and practices or contractual language that does not make a joint employer status more or less likely. A Fact Sheet issued with this proposed rule does a fair job of summarizing the other factors. For example, the DOL indicates that just because a company reserves the right in a contract to exercise control over another company’s workers does not—by itself—make a company more or less likely to be considered a joint employer. Rather, a company must actually exercise the contractual control to become a joint employer. Likewise, the DOL notes that just because a company can require another contracting party to institute anti-harassment policies, workplace safety measures, or wage floors does not make it more or less likely the two companies are joint employers.

The April 1, 2019 notice began the notice-and-comment process. The DOL will accept comments from interested parties for 60 days. The public will be able to provide electronic comments at www.regulations.gov (after searching for RIN no. 1235-AA26) or via mail addressed to:

Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue, N.W.
Washington, D.C. 20210

(identifying in the written comment (1) the Wage and Hour Division, United States Department of Labor; and (2) RIN no. 1235-AA26).

John Getty
jgetty@williamsparker.com
(941) 329-6622

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same!

In 2019, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and civil fines to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA), along with criminal prosecution of employers who knowingly violate IRCA.

Last year ICE I-9 audits increased by 340 percent, resulting in 779 criminal arrests of employers; 1,525 administrative arrests of unauthorized employees; and more than $10.2 million in judicial fines, forfeitures, and restitutions. While most employers do not intentionally falsify Forms I-9 or knowingly accept fraudulent documents from employees, employers’ honest mistakes related to Forms I­9 can be costly. Civil fines, per form with one or more mistakes, range from $216 to $2,156. Thus, the same mistake made on each form could increase the fine exponentially. Moreover, do not forget that the U.S. Department of Justice Immigrant and Employee Rights Section (IER) also conducts Form I-9 audits to ensure that businesses are not engaging in citizenship discrimination.

Employers should protect their businesses by ensuring Form I-9 compliance programs are in place, up-to-date, and followed. For instance, employers should confirm they are using the current form, which has an August 31, 2019 expiration date, and properly following the instructions. Take care to avoid common Form I-9 mistakes, such as an employee’s failure to sign or date the form or the employer’s failure to complete Section 2 by the third business day after the date the employee begins employment. For guidance from ICE regarding Form I-9, visit “I-9 Central” or review ICE’s list of Common Mistakes and How to Avoid Them.

Also, employers should conduct routine Form I-9 internal audits and properly remedy identified errors in order to be legally compliant and to help avoid liability should ICE or IER select your company for an inspection. See Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

In the next couple of weeks, part II of this post will address the ICE inspection process.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557