New Form I-9 Published
On July 17, U.S. Citizenship and Immigration Services (USCIS) released the latest version of the Form I-9. The new Form I-9 has a revision date of 07/17/17 N. Use of the new Form I-9 is voluntary, and companies may continue to use the Form I-9 with a revision date of 11/14/16 N, through September 17, 2017. As of September 18, 2017, use of the new Form I-9 will be required. The fillable PDF version of the new Form I-9 can be accessed by clicking here. The unfillable, paper version can be accessed by clicking here. Instructions for the new Form I-9 may be accessed by clicking here. USCIS has also updated its Handbook for Employers, which provides guidance on proper completion of the Form I-9. You can access the updated Handbook for Employers by clicking here.
Most of the changes made with the publication of the new Form I-9 are minor. For example, in the instructions to the new Form I-9, the Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to its new name, Immigrant and Employee Rights Section. Also, "the end of" was removed from the phrase "the first day of employment." Changes to the Form I-9 itself include renumbering all List C documents except the Social Security card.
USCIS also published on July 17 a new Form I-9 Supplement, Section 1 Preparer and/or Translator Certification, which may be used if extra spaces are required to document more than one preparer and/or translator assisting an employee in completion Section 1 of Form I-9.
As companies begin to phase in use of the new Form I-9 before its effective date, now is as good a time as ever to conduct a self-audit of your Form I-9s for current employees. A self-audit helps avoid potential fines and other liabilities by identifying where corrections need to be made. If you are interested in conducting a self-audit of your Form I-9s, please contact Philip Siegel. You can e-mail Philip by clicking here. Philip has extensive experience conducting Form I-9 audits and assisting companies reduce or eliminate potential liability for civil fines and penalties.
OSHA Electronic Submission Rule Delayed
In May, we informed you that OSHA had announced its intent to delay the July 1st deadline for initial submission of the 2016 Form 300A under the "Improve Tracking of Workplace Injuries and Illnesses," final rule released in the Federal Register on May 12, 2016. On June 28, OSHA published a proposed rule to delay the July 1st deadline to December 1st which can be found in the Federal Register here.
The new proposed rule states that the delay will give the new administration time to review the new electronic reporting requirements before they are implemented. Additionally, the delay is intended to give affected entities time to familiarize themselves with the electronic reporting system, which the proposal states will not be available until August 1, 2017. The electronic reporting system was originally intended to be launched on February 1, 2017.
Additionally, the proposed rule indicates that OSHA intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule. However, OSHA did not give any indication on the timeline for the issuance of the separate proposal and is not currently seeking comments on that proposal.
OSHA sought comments on the proposed delay of the compliance date to December 1, 2017. The public comment period closed on July 13, 2017. The delay of the compliance date to December 1st will only become effective on the date that a final rule is published in the Federal Register.
Interested in Pursuing and H-2B Visa?
On July 19, 2017, the Department of Labor (DOL) and Department of Homeland Security (DHS) published a final rule increasing the H-2B cap by up to 15,000 additional visas through the end of fiscal year (FY) 2017. The additional visas are part of a one-time cap increase that will expire on September 30, 2017.
To qualify for the additional visas, an American business must demonstrate that it is likely to experience irreparable harm, such as permanent and severe financial loss, without the ability to employ all of the H-2B workers that they request under the one-time increase of the cap. This "irreparable harm" requirement, however, does not apply to petitions that are not subject to the H-2B cap, such as petitions in connection with an H-2B extension of stay request.
Also on July 19, 2017, USCIS began accepting increased-cap H-2B petitions with employment start dates on or before September 30, 2017. These applications will be considered in the order in which they are received.
Here are the steps to file an H-2B petition based on the one-time cap increase:
- Meet all existing H-2B requirements, including an approved temporary labor certification (TLC) from the DOL that is valid for the employment period stated in the increased-cap petition;
- Conduct a new round of recruitment for U.S. workers if the TLC contains a start date of work before June 1, 2017; and
- Submit an attestation on Form ETA 9142-B-CAA, in which the employer affirms, under penalty of perjury, that its business will likely suffer irreparable harm if it cannot hire all the requested H-2B workers before the end of the fiscal year.
If an employer is granted its petition, it must retain evidence and records for three years that show compliance with the rules will result in irreparable harm if they are unable to employ all of the workers in the one-time H-2B petition. These records must be provided to the DHS or DOL if requested.
USCIS will stop accepting petitions based on this one-time increase on September 15, 2017. USCIS will reject any petitions after September 15, 2017 or after the one-time cap is reached, whichever occurs first. In addition, any petitions not approved before October 1, 2017 will be rejected and the filing fees will not be refunded.
Petitions with employment start dates on or after October 1, 2017 will be counted towards the FY 2018 H-2B cap. These petitions will be subject to all of the normal eligibility requirements for 2018 H-2B cap filings.
Please contact William E. Burnett
to learn more about the H-2B application process and the H-2B cap. You can send William an e-mail by clicking here.
Joint Employment and Independent Contractor Interpretative Guidance Memos Withdrawn by DOL
On June 7, 2017, U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor's (DOL) 2015 and 2016 informal guidance on joint employment and independent contractors. In its press release, the DOL notes that removal of the administrative interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the DOL's long-standing regulations and case law.
The interpretative guidance memo on independent contractors was particularly troublesome to the construction industry. The DOL's interpretive guidance, which was issued by Administrator David Weil, noted that the Fair Labor Standards Act's (FLSA) definition of "employ" as "to suffer or permit to work" and the later-developed "economic realities" test provided a broader scope of employment than the common law control test, and that the application of the economic realities factors must be considered with the broad "suffer or permit to work" standard of the FLSA. When so considered, the DOL concluded that most workers will be considered employees under the FLSA. With the withdrawal of the interpretative guidance memo on independent contractors, this is no longer the Department's position.
DOL Will Not Defend the Overtime Rules
The DOL has officially decided not to defend the overtime rules adopted by the Obama Administration. As you will recall, a Federal court judge issued an injunction preventing the implementation of those rules, which otherwise were to go into effect December 1, 2016. When the injunction was entered, the DOL filed an appeal to the Fifth Circuit Court of Appeals. After several extensions, the DOL has now filed its brief and announced that it will not be defending the salary thresholds under the Obama administration's rule.
However, the DOL brief does take the position that DOL has the authority under the Fair Labor Standards Act to set salary thresholds for the payment of overtime. This is consistent with the confirmation hearing testimony of Alexander Acosta, who noted that the overtime rules were last updated in 2004 and that the rules likely needed updating. In fact, the DOL has submitted a Request for Information seeking public comment for the possible purpose of issuing a revised rule.
It appears, however, that any new rule will have to wait until the litigation is completed. The injunction which halted the implementation of the rule also held that DOL did not have the statutory authority to use salary thresholds in establishing overtime policies. DOL's challenge of this aspect of the injunction and its RFI seeking public comment indicates that DOL plans to move forward quickly with new rule making efforts as soon as this issue is resolved.
In short, the Obama administration's overtime rule will not be implemented. It appears the DOL will develop a new set of rules which likely will implement some sort of increase, although not on the order of the drastic increase under the rules that were to go into effect in December. We will keep you updated on the status of any new rules. In the meantime, if you have questions please contact either Philip Siegel
, who you can e-mail by clicking here, or Scott Calhoun, who you can e-mail by clicking here.
Revised EEO-1 Report Still Set for March, 2018
In September 2016, the Office of Budget and Management (OMB) approved a revised version of the EEO-1 report that would require employers with 100 or more employees to report employees' W-2 wages and hours under 12 different pay bands, along with the race and sex of the employees according to certain EEO-1 job categories. The new report is slated to take effect in March 2018. After announcement of the revised report, many employers raised concerns with the requirements and hoped that the incoming Trump administration would roll them back.
The U.S. Chamber of Commerce (Chamber) submitted a letter to the OMB in February 2017, seeking a rescission of the OMB's approval of the revised EEO-1 report because, according to the Chamber, the Equal Employment Opportunity Commission (EEOC) underestimated the cost of the new reporting requirements. The OMB has yet to respond to the Chamber's letter and, even if the OMB does rescind its approval and send the EEO-1 report back to the EEOC, Democrats still hold a majority of the seats on the EEOC until July and are unlikely to do away with the new reporting requirements.
Despite employers' hope that the Trump administration would reverse the new reporting requirements, it appears likely that the Trump administration will instead let the reporting requirements take effect in March 2018, because the administration apparently believes that the federal government should collect wage data to determine why a gender pay gap exists in the U.S. The EEOC has also engaged in discussions with employers to find data collection efforts that might be less burdensome to businesses than the EEO-1 report, and the EEOC has received a number of proposals to consider based on those discussions.
For now, however, it may be too late for the government to make changes to the EEO-1 report for 2018. As a result, employers should begin to determine how they will collect and provide the W-2 pay and hours-worked data that is required for the revised report.
Separately, it appears likely that federal contractors will be required to submit their VETS 4212 reports on September 30, 2017. Typically, federal contractors could use the same employee data for the EEO-1 report and the VETS 4212 report. However, it is uncertain whether the VETS 4212 reporting deadline will be moved to March after 2017.
Please contact William E. Burnett, who can be e-mailed by clicking here,
to learn more about the reporting requirements of the revised EEO-1 form.