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New I-9 Form Released and To Be Used Immediately
Courtesy of Cal Chamber, KATIE CULLITON AUGUST 1, 2023
Today’s the day! Nine months after the previous Form I-9, Employment Eligibility Verification expired, the U.S. Citizenship and Immigration Services (USCIS) has published new, revised versions of the Form I-9 documents. Employers should start using these new Form I-9 documents as soon as possible.
Employers must use the Form I-9 to verify their employees’ identity and employment authorization. The new Form I-9 (edition date 08/01/23) has undergone some major improvements, including:
- Sections 1 and 2 have been reduced to a single-sided sheet;
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Section 1 Preparer/Translator Certification and Section 3, Reverification and Rehire, have been moved to separate, standalone supplements that employers can provide to employees as necessary (both supplements can be found as part of the Form I-9) ;
- The Lists of Acceptable Documents were revised to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;
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The Form I-9 Instructions are now eight pages instead of 15; and
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E-Verify employers now have a checkbox to indicate they have examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
Additionally, the revised Form I-9 is designed to be fillable on tablets and mobile devices.
When the previous Form I-9 documents expired at the end of October 2022, the USCIS told employers to continue using the expired form until the new edition was available. Now, employers can start using the new version right away — although, even if employers choose to use the prior version, they can only do so until October 31, 2023, after which the 10/21/19 edition will be obsolete and no longer valid for use. Starting November 1, 2023, employers who fail to use the 08/01/23 edition of Form I-9 may be subject to all applicable penalties. The version date is on the lower left corner of the form.
Note: When the USCIS issues new Forms I-9, existing employees are not required to fill out a new form. As long as employees completed a current Form I-9, listed acceptable identity and work authorization documents, provided unexpired original documents to the employer to view, and signed and dated the form at the time of hire, employers are compliant.
On July 31, 2023, the USCIS revised the Handbook for Employers M-274 to reflect the new Forms I-9 as well as other new updates, guidance and clarifications.
Finally, as previously reported, the Department of Homeland Security (DHS) released a new rule allowing employers enrolled in E-Verify to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure.
CalChamber has added the new Form I-9 English and Spanish versions to the HRCalifornia website, along with the Instructions for Form I-9 (and Spanish). All of these forms are available for free.
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Treasury Plans Proposed Rule on IRA Prevailing Wage and Apprenticeship Requirements:
The U.S. Department of the Treasury plans to release a proposed rule implementing provisions of the ABC-opposed Inflation Reduction Act. The law provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects, conditioned on requirements that project contractors meet prevailing wage and apprenticeship requirements outlined in the legislation and IRS guidance.
Treasury is expected to issue a proposed rule to provide additional guidance on these requirements potentially as soon as this month. As additional information becomes available, it will be added to ABC’s IRA Resources and Guidance for Contractors and Developers
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Overcoming Legal Challenges in the Construction Industry
It’s no secret that the construction industry continues to adapt to challenging operating conditions. Moving with these changes; understanding the overall construction landscape and current trends and pitfalls will help your company adapt to the future of the construction industry. Help build and refine essential skills; hear about the latest industry trends and recognize workplace operational issues by attending an informative 4-part virtual program led by one of our members, Atkinson, Andelson, Loya, Ruud & Romo, attorneys, who will discuss a wide range of legal topics keeping pace with a changing construction sector.
Session 1: August 8 - 10:00 - 11:00 a.m.
Session Title/Description: Recurring Wage and Hour Issues
Providing meal and rest breaks (complications for construction industry); premium payments for breaks; and regular rate of pay.
Session 2: August 15 - 10:00 - 11:00 a.m.
Session Title/Description: Reasonable Accommodation and the Interactive Process
Workplace Injuries more common in the construction industry (repetitive injuries). Engaging in the interactive process and reasonable accommodations of medical conditions, including best practices, communication with employees, documentation, etc..
Session 3: August 22 - 10:00 - 11:00 a.m.
Session Title/Description: Workplace investigations - Techniques & Tactics for the Construction Industry
Investigations pertaining to employee complaints re harassment, bullying, discrimination, retaliation, etc. More general session focus on documentation.
Session 4: August 29, 2023 - 10:00 - 11:00 a.m.
Session Title/Description: The Importance of Written Workplace Policies
This will include written policies pertaining to arbitration agreements (and updates regarding Viking River Cruises and/or Adolph v. Uber); meal and rest break policies, meal period waivers, leave policies, travel time policies, vehicle use policies, on-call agreements.
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Bay Area Project Labor Agreement on the Table
The East Bay Municipal Utility District will consider a Project Labor Agreement that impacts merit-shop contractors. The board will meet on August 8 at 9:00am, accessible virtually and in person.
This PLA is being revisited from 2014, when the EBMUD Board decided not to enforce one due to concerns of “preserving contractor diversity via the District’s Contract Equity Program (CEP), local hiring, allowing equitable participation by all contractors, and promoting jobsite efficiency.”
If you are a contractor who cares about PLAs or knows anyone who does business with EBMUD, please comment publicly at this meeting on how a PLA would impact you and your employees. You can make the difference between another local agency creating discriminatory practices in California with your voice.
For more details on the meeting and how to participate, please click here.
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Closing of Pre-Hearing Discovery Loopholes in Arbitration
BY: Damian J. Martinez, David Kang Atkinson, Andelson, Loya, Ruud and Romo
Arbitration is a creature born of contract, and is favored as an expeditious and economical alternative to a civil lawsuit — in part due to the limited discovery available to parties in arbitration. Increasingly, however, arbitrations have increased in complexity, with discovery growing to proportions more typically seen in civil lawsuits (and likewise growing in cost). However, a California Court of Appeal has now explicitly enforced one of the limitations on discovery in arbitration, foreclosing discovery efforts from spilling over to nonparties to an arbitration unless the parties have otherwise agreed.
In California, arbitrators have always had the ability to issue subpoenas to nonparties, compelling their attendance and production of evidence at an arbitration proceeding (under California Code of Civil Procedure (“Code Civ. Proc.”), section 1282.6) — but such subpoenas were meant to make necessary witnesses or evidence available at the arbitration hearing and not as a means for obtaining third-party discovery. However, under Code Civ. Proc, section 1282.2(b), an arbitrator also has the power to adjourn a hearing as necessary. This allowed for a neat workaround whereby an arbitrator could call a hearing for a nonparty to appear and produce documents, with the intention that the hearing be adjourned once the documents were secured. No court had previously disapproved of this practice.
However, the Court of Appeal in McConnell v. Advantest America, Inc. has now closed this “loophole”, finding under the specific facts of the case that this workaround should not be allowed as an unauthorized discovery subpoena. (McConnell v. Advantest America, Inc. (2023) 309 Cal.Rptr.3d 526, 540.) The Court opined that otherwise, parties to an arbitration could simply demand any manner of documents so long as they are produced at an arbitration “proceeding” — defeating the purpose of the statutory scheme and leading to absurd results.
In McConnell, the subpoenas directed nonparties to appear and produce documents at an arbitration proceeding specially set “for the limited purpose of receiving documents”, and also allowed the nonparties to upload the documents to a website controlled by (and presumably accessible only to) the subpoenaing attorney. Moreover, the subpoenas provided that after the documents were produced, the “hearing” would promptly be adjourned until the arbitration hearing on the merits, nearly 12 months later. This loophole allowed for third-party discovery even though under Code Civ. Proc., section 1283.1 third-party discovery is only allowed where the parties have expressly agreed or in cases involving wrongful death of personal injury. (Id. at 535.) In closing the loophole, the McConnell court’s ruling reinforces the view held by a majority of courts that arbitration is intended to be an expeditious and economical means of dispute resolution.
This is yet another factor that should be carefully considered when deciding between defending a case in civil court or at arbitration. This factor should also be carefully considered when drafting or revising the arbitration agreement itself. If you have any questions about which method of dispute resolution favors your case or defense (or whether arbitration is even an option for you), please contact the authors or your usual counsel at Atkinson, Andelson, Loya, Ruud & Romo for a thorough discussion as to the advantages or disadvantages of each.
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California Supreme Court Rules that Employees Who Prevail on Individual PAGA Penalty Claims in Arbitration Can Also Pursue Civil Actions for Co-worker Penalty Claims
Courtesy of Cook Brown – Barbara A. Cotter, partner
In a ruling with critical implications for California employers, on July 17, 2023, the California Supreme Court held that employees can file a civil action under the Private Attorneys General Act (“PAGA”) even if they are bound by contract to submit their individual-based claims to arbitration. The issue came before the Supreme Court in the matter of Adolph v Uber Technologies, Inc. The Court rejected Uber’s argument that employees who resolve their PAGA claim in arbitration are barred on procedural grounds from resurrecting any such claim in a civil action. The Court held that PAGA is designed to promote enforcement of the Labor Code and should therefore be interpreted broadly to allow just such bifurcation – expressly authorizing arbitration of the employee’s own Labor Code violation claims, as well as the maintenance of a civil action to address Labor Code violations suffered by co-workers. The decision can be found here.
PAGA
PAGA was enacted nearly twenty years ago. It authorizes employees to sue employers on behalf of the state itself to recover civil penalties for Labor Code violations. Under PAGA, employees may recover penalties for Labor Code violations suffered by themselves and may also recover penalties for violations suffered by co-workers. Prior to PAGA, the Labor Code did not allow private causes of action to recover civil penalties.
The Uber decision comes one year after the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, which held that PAGA claims are subject to arbitration under the Federal Arbitration Act. That decision left open the question of the individual’s right to proceed with a PAGA action after resolving his or her own PAGA claims. That question has been resolved – at least for now – by Uber.
PAGA Litigation
In reaching its decision, the Court acknowledged the argument that PAGA litigation can be abusive. The Court found that its hands were tied in addressing such abuse because its role was to follow PAGA, not reform it. The Court held that arguments regarding such abuses should be addressed to the Legislature.
While the decision may result in increased PAGA filings, it identifies some potential pitfalls for PAGA plaintiffs. The Court noted that where an arbitrator finds an individual employee has not suffered any Labor Code violation, such individual could not thereafter sue in court as only “aggrieved” employees can sue under PAGA. The Court also agreed that the civil actions could be stayed pending individual arbitrations, thus creating a backlog of PAGA cases. Given that a ballot initiative to address PAGA’s abuses is on the ballot for 2024, such backlogs may not be resolved before PAGA is scaled back by the state’s voters.
For now, employers who routinely use arbitration agreements to efficiently resolve employee claims should now reassess the value of such agreements at the outset of any PAGA case. In some – but not all – situations, it may ultimately prove to be less expensive and more efficient to waive the right to enforce an arbitration agreement and to proceed instead in one forum in state or federal court.
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