30 employee handbook do’s and don’ts from the NLRB

To help employers craft handbooks that don’t violate the National Labor Relations Act, the National Labor Relations Board has issued a compilation of rules it has found to be illegal — and rewritten them to illustrate how they can comply with the law.

It was issued as a memorandum by NLRB General Counsel Richard F. Griffin, Jr. to “help employers to review their handbooks and other rules, and conform them, if necessary, to ensure they are lawful.”

Specifically, the memorandum points out employer policies found to violate and conform to Section 7 of the NLRA.

The main area of concern

Section 7 mandates that employees be allowed to participate in “concerted activity” to help improve the terms and conditions of their work.

The NLRB has made it abundantly clear recently that it’s on the lookout for rules that:

  • explicitly restrict protected concerted activity, and/or
  • could be construed to restrict protected Section 7 activity.

One thing the memorandum makes very clear: extremely subtle variations in language could be the difference between having a legal policy in the NLRB’s eyes and having one that’s viewed as violating the NLRA.

What to say, what not to say

Here are many of the dos and don’ts highlighted by the memorandum, separated by topic:

Rules regarding confidentiality

  • Illegal: “Do not discuss ‘customer or employee information’ outside of work, including ‘phone numbers [and] addresses.’” The NLRB said, in addition to the overbroad reference to “employee information,” the blanket ban on discussing employee contact info, without regard for how employees obtain that info, is facially illegal.
  • Illegal: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].” The NLRB said a broad reference to “another’s” information, without clarification, would reasonably be interpreted to include other employees’ wages and other terms and conditions of employment.
  • Illegal: Prohibiting employees from “disclosing … details about the [Employer].” The NLRB said this is a broad restriction that failed to clarify that it doesn’t restrict Section 7 activity.
  • Legal: “No unauthorized disclosure of ‘business “secrets” or other confidential information.’”
  • Legal: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
  • Legal: “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”

The NLRB said the last three rules above were legal because: “1) they do not reference information regarding employees or employee terms and conditions of employment, 2) although they use the general term “confidential,” they do not define it in an overbroad manner, and 3) they do not otherwise contain language that would reasonably be construed to prohibit Section 7 communications.”

Rules regarding conduct toward the company and supervisors

  • Illegal: “Be respectful to the company, other employees, customers, partners, and competitors.”
  • Illegal: “Do ‘not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.’”
  • Illegal: “Be respectful of others and the Company.”
  • Illegal: “No defamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.’”

The NLRB said the rules above were unlawfully overbroad because: “employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management, or the employer in general.”

  • Illegal: “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
  • Illegal: “‘Chronic resistance to proper work-related orders or discipline, even though not overt insubordination’ will result in discipline.”

The NLRB said the rules above, while banning “insubordination,” also ban “conduct that does not rise to the level of insubordination, which reasonably would be understood as including protected concerted activity.”

  • Illegal: “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
  • Illegal: “It is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
  • Illegal: “Do not make ‘statements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”‘”
  • Illegal: “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”

The NLRB said the rules above “were unlawfully overbroad because they reasonably would be read to require employees to refrain from criticizing the employer in public.

  • Legal: “No ‘rudeness or unprofessional behavior toward a customer, or anyone in contact with’ the company.”
  • Legal: “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”

The NLRB said the rules above are legal because they wouldn’t lead an employee to believe they restrict criticism of the company.

  • Legal: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.” The NLRB says employees would reasonably understand that this states the employer’s legitimate expectation that employees work together in an atmosphere of civility.
  • Legal: “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.” The NLRB said this rule is legal because “employees would reasonably interpret it to apply to employer investigations of workplace misconduct rather than investigations of unfair labor practices or preparations for arbitration.”
  • Legal: “‘Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in’ discipline.” The NLRB said: “Although a ban on being  disrespectful’ to management, by itself, would ordinarily be found to unlawfully chill Section 7 criticism of the employer, the term here is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats, and assault. Viewed in that context, we concluded that employees would not reasonably believe this rule to ban protected criticism.”

Rules regarding conduct between employees

  • Illegal: “‘Don’t pick fights’ online.”
  • Illegal: “Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.’”
  • Illegal: “Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
  • Illegal: “Do not send ‘unwanted, offensive, or inappropriate’ e-mails.”

The NLRB said the rules above were unlawfully overbroad because employees would reasonably construe them to restrict protected discussions with their co-workers.

  • Legal: “[No] ‘Making inappropriate gestures, including visual staring.’”
  • Legal: “Any logos or graphics worn by employees ‘must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.’”
  • Legal: “[No] ‘Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.’”
  • Legal: “No ‘harassment of employees, patients or facility visitors.’”
  • Legal: “No ‘use of racial slurs, derogatory comments, or insults.’”

The NLRB said the rules above were legal because: “when an employer’s professionalism rule simply requires employees to be respectful to customers or competitors, or directs employees not to engage in unprofessional conduct, and does not mention the company or its management, employees would not reasonably believe that such a rule prohibits Section 7-protected criticism of the company.

4 Hiring Challenges Facing Small Business Owners

Hiring professional talent in today’s market can be extremely difficult. Find out why it can be so tough for companies, while also learning how to deal with the stress of finding the right candidates.

For many small business owners, the last few years have been the best of times. As the economy has grown, their businesses have grown. New clients have appeared, and existing clients have increased orders. Growth is exciting.

As companies grow, however, they often need to hire new people for positions that did not previously exist. Suddenly, a function needs to be professionalized. Ten years ago a company could promote a warehouse worker to a shipping supervisor role, but after years of expansion, the business needs a supply chain manager to handle the more complex relationships that stem from a growing company. A decade ago, an office manager could double as a personnel manager at a 25-employee company. With 120 staff members today, that same firm needs at least a professional HR manager, if not a director.

Unless properly managed, these hiring projects could lead to the worst of times. For a business owner, hiring professional talent in today’s market can be problematic. Here are a few reasons why hiring can cause a headache for small businesses, and how to help your business stand out in the hiring process.

It’s a tight market

With a 4 percent unemployment rate, there is a limited pool of unemployed job candidates. Your ideal hire might be working somewhere else and needs a reason to quit their job and work for you. When a promising talent is not looking for work, they need to be identified and attracted to your company.

Employers have built stronger cultures

Since the last recession, most companies, large and small, have improved their culture and business. In 2008, a candidate might have been eager to escape a horrible boss or bad culture. Thankfully, there are fewer of both now, but relying on another company to be worse than yours is a bad strategy.

The skills you want reside in larger firms

In the past, small companies could attract talent from larger firms by emphasizing work flexibility and a family atmosphere. Over the years, most large companies have invested a fortune in work-life balance alternatives, as well as other bells and whistles. Don’t expect a candidate to take a pay cut to work at a smaller firm just because you won’t make them use a vacation day for a child’s doctor visit. Realistically, is that worth $10,000 less in salary and a cut in a 401(k) match?

Candidates have options

The traditional mindset is that a candidate applies for a job – basically asking an employer to consider them. In reality, the balance of power has now shifted. Employers ask the candidate to join them. Many small companies let their egos get in the way of this newfound practice. They think the candidate needs to show they want the job and make some type of sacrifice. This is a self-defeating philosophy, especially when a candidate is considering multiple employers. The choice is not between a candidate’s existing employer and your company. It is between the existing employer and any of two, three or five companies that will appear over the next few months. In a good economy, everyone grows. Other companies have grown and need the same skilled candidates as you.

The solution

The first thing you need to do is create a clear message for attracting talented candidates. If your team can’t answer the question, “Why should I quit my job and work for you?” then you need to revisit your message and, potentially, your team members. The answer can’t be “because we are nice people.” It needs to be a clearly defined message.

The second step is determining the type of person you want to hire. Attributes like experience level, current job and the type of company or industry someone is currently working in should all be analyzed and considered. Select and define the factors most important to your business. Identify your market, and then figure out a way to get that message to your market. Ads, recruitment firms and aggressive referral programs are all useful tools.

Lastly, have an employment process that is candidate friendly. Don’t make a candidate leave work in the middle of the day for a half-hour screening interview. Don’t have an interviewer who thinks it is their job to ask questions but not answer them. Engage with the candidate. If you don’t do that with them now, they will project that behavior onto themselves as a potential employee and stop the hiring process before it ever really gets started.

How to Create a Talent Management Process

If you want to get the best out of your employees and attract new talent, you must implement an efficient talent management process.

Employees are the most important part of an organization, offering passion, personality, hard work and unique assets from all angles. This is the mentality you should have when developing your team – and your talent management process.

Some employers act on the notion that workers can be replaced, viewing them not as humans but as machines that simply get the job done. Instead, you should recognize and build on superior talent within your organization, focusing on their personal strengths and interests, and how they fit into your business.

Such a strategy is known as a talent management process, which seeks to recruit, develop and retain top talent.

Today’s employees want to know that they have been selected for positions because they have the ability to succeed in those positions and that the organization is going to continue to develop them into top performers. They are looking for companies with strong talent management systems that will recognize their individual efforts, reward their performance, and give them opportunities for growth and development.

Your talent management process exists to support your employees without trying to change them. It’s a crucial addition to every business. To get the best out of your employees and continue to attract new talent, you’ll want to implement an efficient talent management process. Here’s how.

Creating a talent management process

The first step is to ensure that there are channels and pathways for expectation setting, training, two-way feedback, and coaching to enable a continuous cycle of talent management and performance.

Transparency is key. Employees search for more than monetary rewards and a glamorous office. Sure, those incentives are attractive and beneficial, but workers want to know that they share the vision and values of their potential company. That’s why it’s crucial to identify your organization’s mission from the get-go.

The organization must have a solid idea of what they are about, what they want to accomplish and who they want to be as they journey there. This may take the form of a mission statement, organization goal and/or a list of no-compromise values.

Given how tight the labor market is today, it’s critical that you’re able to differentiate the experience your company or team will provide for a potential candidate and, eventually, employee. Part of how this is accomplished is by sharing company values and telling their story – things that must be proved out once someone is hired. It can’t just be lip service.

Your vision and values as a company will influence every part of your talent management process, from recruitment and hiring to retention and employee development. For instance, an applicant might be a talented individual with tons of experience, but if their objectives don’t match yours, they won’t serve your organization the way you need. Or, if a current employee isn’t progressing in a way that suits your mission, you’ll better know how to approach the issue for both parties.

Areas of focus

There are many issues to address in your talent management process:

  • Organizational and job design: Which skills, abilities and performance are needed to meet goals and objectives?
  • Workforce planning: What is your strategy or plan for developing teams with the necessary skills and capabilities? Which skills are critical to hire, and which can be built through training and coaching?
  • Talent acquisition: How will you source, screen and hire talent with the right skills, abilities and characteristics?
  • Onboarding and orientation: What are your pre-arrival and arrival logistics? What will your new-hire orientation entail? How will you ensure effective expectation setting, team integration, and cultural alignment and assimilation?
  • Learning and development: How will you customize training for each worker in line with company goals and objectives? How will you integrate this development into day-to-day performance, management, feedback and coaching?
  • Performance management: How will you provide continuous opportunities for performance review, appraisal, feedback and planning? How will you ensure clarity of expectations and nurture a culture of coaching and performance?
  • Leadership development: How will you review employee performance and potential? How will you develop and prepare individuals for possible leadership roles?
  • Employee engagement: How will you continuously gauge employee engagement levels? How will you align their work with the company’s vision, objectives, beliefs, roles and values?

As a small business looking to make initial inroads around effective talent management, it is important to focus on the components and levers that are most impactful for your team or organization.

 

California Employment Law Update

The State of California has been very busy with employment law changes.  See below all of the laws that passed in May with various effective dates.

FEHA and National Origin Discrimination

On May 17, 2018, the California Office of Administrative Law approved the California Fair Employment and Housing Council’s new amendments to the state’s Fair Employment and Housing Act regarding national origin discrimination and employment. The new amendments:

  • Clarify the definitions of national origin and national origin groups.
  • Clarify permissible and prohibited types of employer policies governing English proficiency, accent, and language spoken in the workplace.
  • Clarify permissible and prohibited inquiries regarding immigration status.
  • Detail prohibited forms of harassment in the context of national origin.

The new amendments are effective July 1, 2018.

Read the law

San Francisco Paid Sick Leave Rules

On May 7, 2018, the San Francisco Office of Labor Standards published new rules reinterpreting the city’s Paid Sick Leave Ordinance (PSLO) with the following changes:

  • Setting the standard for coverage as applicable to employees working 56 hours in the city and removing a reference to working in the city “on an occasional basis.”
  • Joint employment terms are defined in relation to PSLO applicability.
  • Verification or documentation disclosure protections for employees are modified by requiring no more than is necessary for an employer to determine if the absence is lawful.
  • The notice requirements are modified to require what is presumptively reasonable for pre-scheduled or foreseeable absences.
  • An employee’s regular rate of pay is calculated according to state law (Cal. Labor Code § 510) where previously the calculation was undefined.
  • The basis of an employee’s exempt status is confirmed; however, the rule provides that if an exempt employee was not provided any other paid leave, and sick leave is taken, then his or her salary continues without deduction for the sick time taken, but the leave balance is reduced.
  • The waiting period requirement was modified for employees who are rehired within one year by permitting their original employment period to apply to its fulfillment.
  • Clarifications as to how the PSLO applies to a unionized workforce and collective-bargaining agreements.
  • Modification of remedy calculations and issue resolution timeframes for noncompliant employers.

The new rules are effective June 7, 2018.

Read the rules

Los Angeles Minimum Wage

The City of Los Angeles released its updated local minimum wage poster. Effective July 1, 2018, and under the city’s minimum wage ordinance, Los Angeles employees must be compensated as follows:

  • $12 per hour for employers with 25 or fewer employees.
  • $13.25 per hour for employers with 26 or more employees.

This notice also provides information about the city’s paid sick leave provisions and must be posted in a conspicuous place at any workplace or jobsite. Violators are subject to penalties.

See the poster

San Leandro Minimum Wage

Effective July 1, 2018, the City of San Leandro’s minimum wage increases to $13 per hour. The city released a new poster reflecting this new rate along with the other rate increases that take effect each July 1st through year 2020.

See the poster

Santa Monica Minimum Wage

The City of Santa Monica released its updated local minimum wage poster. Effective July 1, 2018, and under the city’s minimum wage ordinance, every Santa Monica employee (part time or full time) who works at least two hours in a particular work week within the geographic limits of the city must be paid no less than:

  • $12 per hour for employers with 25 or fewer employees.
  • $13.25 per hour for employers with 26 or more employees.

The city’s hotel worker living wage also increased, as listed in the poster, to $16.10 per hour effective July 1, 2018.

See the poster

San Francisco Minimum Wage

On July 1, 2018, the San Francisco minimum wage will increase to $15 per hour. The city released an updated minimum wage poster reflecting the 2018 rate, which must posted by San Francisco employers at each workplace or jobsite.

See the poster

Redwood City Minimum Wage

On April 10, 2018, Redwood City Mayor Ian Bain signed a city minimum wage ordinance (No. 2443) requiring Redwood City employers to pay the following minimum wages:

  • $13.50 per hour effective January 1, 2019.
  • $15 per hour effective January 1, 2020.

Under the ordinance, learner employees must be paid no less than 85 percent of the applicable minimum wage for the first 160 hours of employment and then must be paid the applicable minimum wage. Additionally, employers may not deduct any tip or gratuity (or credit any tip or gratuity) to offset an employee’s wages.

Beginning on January 1, 2021, and each year thereafter, the city’s minimum wage will increase by an amount corresponding to the prior year’s increase in the cost of living, if applicable. The cost of living increase will be measured by the percentage increase in the Consumer Price Index (CPI) for San Francisco-Oakland-San Jose. The increase will be calculated by using the August-to-August change in CPI; however, a decrease in the CPI will not result in a decrease in the minimum wage.

The ordinance also provides the following:

  • Posting requirements.
  • Retention of payroll records for three years.
  • Retaliation prohibition.
  • Exceptions.
  • Violations, enforcement, and penalties.

The ordinance became effective May 10, 2018.

Read the ordinance

Belmont Minimum Wage

The City of Belmont updated its minimum wage rate official notice to reflect the city’s minimum wage increase to $12.50 (tips not included) per hour for employers who are subject to the Belmont Business License Tax, or who maintain a facility in Belmont, and have an employee who works at least two hours per week in the city.

The rate is effective July 1, 2018.

See the notice

Pasadena Minimum Wage

The City of Pasadena updated its minimum wage rate official notice to reflect the city’s minimum wage increase to $13.25 (in addition to any tips received) per hour for employers with 26 or more employees.

The rate is effective July 1, 2018.

See the notice

Independent Contractors, IWC Wage Order Claims, and the ABC Test

On April 30, 2018, the California Supreme Court filed its decision in Dynamex Operations West, Inc. v. Superior Court regarding the proper classification of workers under the California Industrial Welfare Commission’s (IWC) wage order claims. As opposed to employees, independent contractors are not covered by IWC wage orders.

In Dynamex, the court held that there is a presumption that a worker is an employee, and covered under the IWC wage orders, unless a business (hiring entity) can establish that all of the following factors of the “ABC test” are applicable:

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. The worker performs work that is outside the usual course of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

If the business can establish that all parts (A, B, and C) of the test are met then the worker is an independent contractor for IWC wage order claim purposes. The court’s ruling in specifically applies to the analysis of the “suffer or permit to work” definition of “employ” contained in the wage orders when evaluating worker status. The court did not address which test is applicable to claims of misclassification under other California statutes, only to claims under the IWC wage orders.

The decision is effective as of April 30, 2018.

Read the decision

Current FMLA Forms Now Expire June 30

The Family and Medical Leave Act (FMLA) forms expire June 30—not on their original expiration date of May 31—but aren’t likely to change when they’re replaced with new forms, experts say.

Employers who customize their own forms aren’t too concerned with the imminent replacement of the current forms, while employment law attorneys disagree on how much the DOL forms might be tweaked.

The FMLA forms are used to certify that an employee is eligible to take FMLA leave and to notify him or her of leave rights under the law. The forms expire under the Paperwork Reduction Act of 1995, which requires the Department of Labor (DOL) to submit its forms at least every three years to the Office of Management and Budget (OMB) for approval, so the OMB can ensure processes aren’t too bureaucratic.

The DOL is renewing the current FMLA forms on a month-to-month basis until it replaces them with new forms. But the new forms may be virtually identical to the current ones and have a different expiration date, according to Jeff Nowak, an attorney with Franczek Radelet in Chicago.

In 2015, the DOL made a few minor tweaks to the FMLA forms so they would conform with the Genetic Information Nondiscrimination Act.

This cycle, the DOL did not request any changes to the forms, Nowak said.

There have not been substantive changes to FMLA or its regulations in the past three years that would require changing any of the information provided or sought on the current forms, noted Tina Bengs, an attorney with Ogletree Deakins in Indianapolis and Valparaiso, Ind., and Chicago. So it seems likely that the new forms, once issued, will be approved for the maximum three-year period, she predicted.

Customization of Forms

Some employers customize the DOL-recommended forms for their own use, observed Steven Bernstein, an attorney with Fisher Phillips in Tampa, Fla. For example, some employers are covered by state and federal FMLAs and adjust the federal forms to reflect state law requirements. Others make minor changes, such as referring to workers as “associates” rather than “employees.”

On occasion, employers incorporate reference to their accrued leave policies, while others adopt robust language disclaiming liability under the FMLA, he said.

He cautioned, however, that an employer can be held liable for using a form that harms the employee by misleading him or her about FMLA rights, and recommended that any changes be reviewed by an outside expert to ensure that added language does not inadvertently conflict with the FMLA.

Monica Velazquez, an attorney with Clark Hill in Collin County, Texas, prefers customized forms so that employers aren’t handing workers documents with the DOL logo. The logo makes the forms look more official than they are, she said, emphasizing that their use is optional.

Copy and paste the information from the DOL form into the employer’s own form, she recommended. If the employer plans to use its own language, use plain English and bullet points, she said. “Keep things as direct as possible.”

“I think the forms should have less space for health care providers to handwrite information,” said Megan Holstein, a senior vice president of absence and disability with Fineos in Denver. For example, instead of an open-ended question about the employee’s treatment schedule, a customized FMLA form might ask the doctor to choose a frequency of treatment—every week, month or year—and circle the response. This would reduce the challenge of reading doctors’ often illegible handwriting, she explained. Less space for handwritten information also would reduce the chances of doctors’ filling certification forms with confusing medical lingo, she added.

Many employers put the information about health conditions at the top of the medical certification forms, as it’s the first piece of information the employer wants—what ails the employee or family member—so the employer has a better sense of whether the employee is covered by the FMLA, Nowak noted. Nevertheless, he said he doesn’t have many concerns with the FMLA forms and encourages clients to use them.

FMLA Forms

The current DOL forms are:

ICE Planning Surge of I-9 Audits This Summer

Derek Benner, acting executive associate director for ICE’s Homeland Security Investigations (HSI) told The Associated Press that in addition to the plans for this summer, the agency will continue to focus on criminal cases against employers and deporting employees who are in the country illegally.

ICE has already opened more worksite investigations seven months into fiscal year (FY) 2018 than the agency completed in all of FY 2017. The federal fiscal year runs from Oct. 1 to Sept. 30. Enforcement investigations in FY 2018 have doubled last year’s total, and arrests related to worksite enforcement have nearly quadrupled.

Since October 2017, HSI has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. That’s up from 1,716 investigations, 1,360 I-9 audits, 139 criminal arrests and 172 administrative arrests the previous fiscal year.

If anyone was wondering if the Trump administration was more bark than bite, these numbers indicate a significant increase in enforcement action, noted Muzaffar Chishti, an attorney and director of the Migration Policy Institute’s office at New York University School of Law. “What is not clear is whether any employers are included in the arrests,” he said. “Arrests—both criminal and civil—are almost always workers. For example, no one from management was charged in the high-profile Tennessee raid in April. That seems to be an imbalance.”

The ICE Toolkit

ICE said it uses a three-pronged approach to worksite enforcement:

  • Compliance, via Form I-9 audits, civil fines and debarment from federal contracts.
  • Enforcement, through the criminal arrests of employers and administrative arrests of unauthorized workers.
  • Outreach, by participating in the ICE Mutual Agreement between Government and Employers program, in which ICE certifies organizations for complying with the law. As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system.

Chishti believes pushing employers to enroll in E-Verify may be the aim of ICE’s more aggressive enforcement actions. “That strategy may work, but it only works for people who are on payroll,” he said.

E-Verify doesn’t enforce compliance for people paid as independent contractors, outsourced workers or those paid off the books, he said, adding that there’s a tendency for employers to explore these alternative hiring methods in response to increased enforcement.

Be Prepared for a New Normal.

Soon, ICE intends to conduct up to 15,000 Form I-9 audits per year, to be completed by electronically scanning documents in a not-yet-created national inspection center, Benner said.

“Investigations most often start with a notice of inspection alerting employers that ICE is going to audit their employment records for compliance with existing law,” said Michael H. Neifach, an attorney in the Washington, D.C., region office of Jackson Lewis. Enforcement actions can begin from a law enforcement tip or from an investigation into another type of violation, such as labor standards violations, and could result in civil penalties and/or criminal charges for employers.

ICE recently changed the way it calculates civil penalties to increase the fines imposed for I-9 violations. In FY 2017, employers were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.

“Unauthorized employees who are not legally in the U.S. may be detained and, ultimately, deported,” Neifach said. “Given the government’s focus on worksite inspections, preparing for possible inspections by auditing your employment verification processes and records is an essential precaution.”

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