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Remote Examination of I9 Documents Allowed under Proposed DHS Rule

On July 21, 2023, DHS released early a proposed rule (official release coming on July 25) (click here) that will allow an optional alternative for employers to remotely examine Form I-9 documentation. The new DHS alternative authorizes employers enrolled in E-Verify the option to remotely examine their new hires’ identity and employment authorization documents. The new DHS option allows remote examination of the Form I-9 documents, instead of the current requirement to examine documents in person. To participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.

The alternative procedure is available only to qualified employers, meaning those employers who are participants in good standing, in E-Verify. Good standing means an employer has enrolled in E-Verify for all its U.S. hiring sites and the employer is in compliance with all requirements of the E-Verify program (including verifying the employment eligibility of newly hired employees). An employer must consistently offer the alternative procedure to all new employees at an E-Verify hiring site. However, an employer may still choose to continue to apply physical examination procedures to all employees who work onsite.

In addition to the consistent, legal use of the E-Verify system, a qualified employer must also:

  • Conduct a live video interaction after the employee transmits a copy of the document(s) to the employer.
  • Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt12 to ensure that the documentation presented reasonably appears to be genuine.
  • Retain a clear and legible copy of all documents presented by the employee.
  • Indicate on Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2.
  • Take an E-Verify tutorial (free) that includes fraud awareness and anti-discrimination training.
  • In the event of an audit, make available clear and legible copies of the identity and employment authorization documentation presented by the employee.

Qualified employers may use the alternative procedure starting on August 1, 2023.

The alternative procedure can also be used to satisfy the physical inspection requirement for I9s completed under special COVID-19 temporary rules. Qualified employers that 1) were enrolled in E-verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 while using the COVID-19 flexibilities, 2) created an E-Verify case for that employee, and 3) performed the remote inspection between March 20, 2020, and July 31, 2023, …. can use the alternative procedure to satisfy the required physical examination of the employee’s documents for that Form I-9.

Is the new I9 form ready for employers to use on August 1, 2023?

Yes. The long-awaited new version of Form I‑9, Employment Eligibility Verification (PDF, 483.6 KB) is now available for use. Starting August 1, 2023, this version contains changes to the form and instructions, including shortening the Form I‑9 to one page and reducing the instructions to eight pages. Employers may begin using the new Form I‑9 on August 1, 2023, but the later version (form I‑9 dated “10/19/2019”) may continue to be used through October 31, 2023. The version date can be found in the lower-left corner of the form. Beginning November 1, 2023, only the new Form I‑9 dated “08/01/23” may be used. A revised Spanish Form I‑9 dated “08/01/23” is available for use in Puerto Rico only. A summary of changes (PDF, 185.1 KB) to the Form I‑9 and instructions is available online, in an earlier blog post. Now only one page long, the new edition is easier for employers and employees to use. Other improvements include clearer instructions and providing guidance on acceptable receipts and the auto-extension of some documents found on the Lists of Acceptable Documents.

Florida Clarifies Details Related to new E-verify law

Recently, the Florida Department of Revenue released some important FAQs for the new Florida E-verify law. Click here to review and download the DOR Information sheet. Here are some of the more important new employee eligibility and e-verify questions and answers:

  • Is an employer required to certify the employment eligibility of Florida and non-Florida employees? Section 448.095, Florida Statutes, requires that public agencies and private employers with 25 or more employees performing services in Florida must certify the eligibility of their employees performing services in Florida.
  • Who can certify compliance with the new law (for employers with 25 employees)? Certification must be completed by (1) the individual owner, (2) the corporate president, treasurer, or other principal officer, or (3) a partner or member/managing member. The certification statement should be signed and dated.
  • Can an agent or management company certify compliance? No, these entities do not have the statutory authority to certify the use of the E-Verify system on behalf of an employer. These entities will continue to file reemployment assistance reports with the Department on behalf of the employer, and the employer will separately certify the use of E-Verify.
  • How does an employer certify compliance with E-verify? After July 1, 2023, each covered private employer must certify the use of the E-Verify system on its first Florida reemployment tax return filed in a calendar year. There are four (4) options to certify:
    • Employer E-Verify Certification (Form E-Verify)
    • Paper Report (Form RT-6, RT-6EW, RT-6A, RT-6NF, or RT-8A)
    • Online File and Pay Application
    • Extensible Markup Language (XML)
  • What if an employer varies above and below 25 employees? A private employer must verify its new employee’s employment eligibility using E-Verify if that new employee will be the 25th or greater employee performing services in Florida at the time of the new employee’s employment verification.
  • Do employers count employees at related companies (to determine 25 employee total)? Only include employees who are performing services for the private employer, unless the private employer is an authorized common paymaster. If the private employer is an authorized common paymaster for related companies, the common paymaster should count all employees for which it performs common paymaster duties as well as its own employees.

Keep checking with the Florida Department of Revenue for more updates in the future. Click here for the E-verify site.

New I9 Form to be Released on August 1, 2023

On Aug. 1, 2023, U.S. Citizenship and Immigration Services will publish a revised version of Form I-9, Employment Eligibility Verification. Among the improvements to the form is a checkbox employers enrolled in E-Verify can use to indicate they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS) described below. Read the USCIS press release.

Yesterday, DHS announced a final rule that recognizes the end of temporary COVID-19 flexibilities as of July 31 and provides DHS the authority to authorize optional alternatives for employers to examine Form I-9 documentation. At the same time, DHS also published an accompanying document in the Federal Register describing and authorizing employers enrolled in E-Verify the option to remotely examine their employees’ identity and employment authorization documents under a DHS-authorized alternative procedure. To participate in the remote examination of Form I-9 documents under the DHS-authorized alternative procedure, employers must be enrolled in E-Verify, examine and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire. Click here to locate the new I9 Form.

Some of the changes with the revised Form I-9 are:

  • Reduces Sections 1 and 2 to 1 page;
  • Is designed to be a fillable form on tablets and mobile devices;
  • Moves the Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
  • Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can use if it is necessary;
  • Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation; and
  • Adds a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.

Employers can use the current Form I-9 (edition date 10/21/19) through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new Form I-9.

What are the Advantages of Fractional HR Services for Florida Businesses

Fractional HR services offer many advantages for Florida businesses, particularly for small and medium-sized organizations that may not have the resources or need for a full-time Human Resources department. Here are some of the key advantages of fractional HR services:

  1. Cost-effective: Fractional HR services provide businesses with access to HR expertise without the expense of hiring a full-time HR professional. This can significantly reduce costs, especially for businesses operating on a tight budget.
  2. Flexible: Fractional HR services allow businesses to customize the level of HR support they need based on their requirements. It might be a few hours a week, or help on a specific project, fractional HR professionals adapt to the company’s needs and provide support on a part-time basis.
  3. Expertise and experience: Fractional HR professionals are typically highly experienced and specialized in many HR practices. They bring a wealth of knowledge and expertise to their clients, which is beneficial for businesses that lack HR expertise on the staff.
  4. Focus on core business activities: By outsourcing HR functions, businesses can free up their internal resources and focus on their core activities. This leads to increased productivity and efficiency.
  5. Scalable: Fractional HR services can easily scale their support as a business grows. Whether it’s recruiting, onboarding, or policy development, fractional HR professionals can adapt to changing needs and provide support during periods of expansion or restructuring.
  6. Compliance and risk management: HR functions involve compliance with various laws, regulations, and best practices. Fractional HR professionals stay updated with the latest legal requirements and can help businesses navigate complex employment laws, reducing the risk of non-compliance and potential legal issues.
  7. Objective and impartial: External fractional HR professionals bring an objective perspective to HR matters. They are not influenced by internal politics or biases, which can help in resolving conflicts, conducting investigations, or making unbiased decisions.
  8. Experience with HR technology and tools: Fractional HR professionals often have experience with advanced HR technologies, software, and tools that can streamline HR processes and enhance efficiency. They can also review and assess various HR software options to determine what is best for their clients’ needs.

Consultstu provides fractional HR services to Florida small/mid businesses. We offer full HR outsourcing services, as well as background screening, drug-free workplace plans, immigration audits/reviews, recruiting, policy development, job descriptions, HR technology implementations, termination counseling, restructuring plans, investigations, performance enrichment programs, outplacement services and other HR services that help companies grow and succeed.

Are Remote Employees Covered by FMLA?

The U.S. Department of Labor (DOL) issued a field assistance bulletin (FAB) on February 9, 2023, to clarify the Family and Medical Leave Act’s (FMLA’s) hours-of-service eligibility requirement for teleworkers, as well as the application of the Fair Labor Standards Act (FLSA) to nonexempt remote workers. On the same day, the DOL also explained in an opinion letter the same day that eligible employees with serious health conditions who require reduced work schedules may indefinitely use available FMLA leave.

When a remote employee works from home, the employee’s worksite for FMLA eligibility purposes is the office to which the worker reports or from which assignments are made. So, if 50 employees are employed within 75 miles of the worksite, the employees meet that FMLA eligibility requirement. For employees who do not have a fixed worksite, the worksite should (consistent with the Worker Adjustment and Retraining Notification Act), be the site to which they are assigned as their home base, from which their work is assigned or to which they report.

In Opinion Letter 2023-1-A, issued the same day, the DOL reminded employers that they should consider their legal obligations under the FMLA and the Americans with Disabilities Act (ADA) when considering employees’ requests to work a reduced schedule. Once an employee has used up their 480-hour allotment of hours under FMLA, an employer cannot reject a request for reduced schedule leaves under the FMLA by stating that it must be addressed under the Americans with Disabilities Act. Both FMLA and ADA obligations are triggered when there is a request for reasonable accommodation.

How to Calculate FMLA Leave When a Holiday Falls in a Week

An important part of compliance is to correctly count the number of days that an employee is entitled to take when they qualify for the Family and Medical Leave Act (FMLA). To help employers, the DOL just released an Opinion Letter that gives employers clear guidance on how to calculate FMLA entitlement under the FMLA during a week with a holiday. FMLA2023-2-A

When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. For example, an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Tuesday would use one week of leave and not 4/5 of a week.

However, when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. This guidance has been consistent since the first days of the FMLA.

There is a question of whether the employee taking leave during a week that includes a holiday is using a fraction of the employee’s usual workweek (a workweek without a holiday), or if the employee is using a fraction of a reduced workweek (the employee’s usual workweek less one day due to a holiday). A May 2023 DOL FMLA Opinion Letter answers this question.

Under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement. If a holiday occurs during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday. Therefore, if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday). Accordingly, for an employee with a Monday through Friday workweek schedule, in a week with a Friday holiday on which the employee would not normally be required to report if the employee needs FMLA leave only for Wednesday through Friday, the employee would use only 2/5 of a week of FMLA leave because the employee is not required to report for work on the holiday. However, if the same employee needed FMLA leave for Monday through Friday of that week, the employee would use a full week of FMLA leave despite not being required to report to work on the Friday holiday.

DOL Updates Minimum Wage and FMLA Posters in April 2023

Employers must take note that the federal government has been busy updating several mandatory workplace posters. In April 2023, two posters were updated. First, the Department of Labor (DOL) released an updated “Minimum Wage” poster to include revised information concerning employees’ rights under the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act). This poster must be updated in order to meet the mandatory Minimum Wage posting requirements and prior versions do not comply. The new FMLA poster can be downloaded here.

Second, for employers with 50 or more employees, the DOL also updated “Your Employee Rights Under the Family and Medical Leave Act” poster. Not much has changed in the poster, but there have been some minor language changes in wording referring to employees and employers such as “may” or “must” in connection with requests for FMLA leave. The poster also includes a QR code that can be scanned to obtain additional information about how to file a complaint with the DOL It is recommended that employers update to the newest version of the FMLA poster, even though prior versions of the FMLA poster (dated April 2016 and February 2013) still meet compliance requirements.

The DOL provides free electronic copies of all the required posters and some posters are available in languages other than English. Posting requirements vary by federal law, meaning that not all employers are covered by each of the DOL’s laws and thus may not be required to post a specific notice. For example, small businesses (under 50 employees) are not covered by the Family and Medical Leave Act and thus would not be subject to the Act’s posting requirements.

Open Enrollment Trends in 2023

Here are some general trends that have been observed in recent years that continue to influence Open Enrollments for employers in 2023.

Open Enrollment trends in 2023, it’s advisable to consult industry reports, insurance providers,

  • Increased emphasis on digital enrollment: With the growing reliance on technology, more employers and insurance providers are shifting towards digital platforms for Open Enrollment. This allows for greater convenience, accessibility, and efficiency in the enrollment process. Online systems, like Ease and Employee Navigator, are great tools and may be available at no cost from your benefits broker.
  • Expanded use of online decision support tools: Decision support tools, such as online calculators and plan comparison tools, have become increasingly popular during Open Enrollment. These tools help individuals assess their healthcare needs, compare plan options, and make more informed decisions. Companies like BRI offer resources to clients that can help employees use recommendations to enroll in the benefits that best suit their needs. Other options for small/mid businesses include: Perky Tech and Plansource.
  • Continued rise of consumer-driven health plans: Consumer-driven health plans, such as high-deductible health plans (HDHPs) and health savings accounts (HSAs), have gained traction in recent years. These plans typically offer lower premiums but higher deductibles, giving individuals more control over their healthcare spending. HSA assets grew by 6% in 2022, and look to keep growing.
  • Focus on employee wellness and well-being: Many employers are recognizing the importance of supporting employee wellness and well-being. As a result, they may offer additional benefits and resources related to mental health, stress management, fitness, and preventive care during the Open Enrollment period. Spend some time focusing on benefit plan perks and freebies, such as telemedicine, wellness, rewards and EAP access. For instance, UHC offers UHC Rewards, Rally (app), UHC SimplyEngaged (biometric testing rewards) and Motion (earn money toward HSA for activity).
  • Increased emphasis on transparency and cost-sharing: There has been a push for greater transparency in healthcare costs, with more emphasis on helping individuals understand the cost-sharing components of their health plans. This includes providing clearer information on deductibles, copayments, and coinsurance to enable more informed decision-making.
  • Ongoing changes to regulatory and policy landscape: Healthcare regulations and policies can significantly impact Open Enrollment. Changes in federal or state regulations, such as modifications to the Affordable Care Act (ACA) or new legislation, may influence plan options, coverage requirements, and enrollment deadlines. Individual health plans continued to grow, up 25% from 2020 to 2022 (to over 16 million), due to enhanced government subsidies which will extend through 2025 under the Inflation Reduction Act.

Does a K1 or Owner Complete an I9 form?

According to USCIS, an employer must complete Form I-9 each time it hires any person to perform labor or services in the United States in return for wages or other remuneration. Remuneration is anything of value given in exchange for labor or services, including food and lodging. The requirement to complete Form I-9 applies to new employees hired in the United States after Nov. 6, 1986.

Form I9 is not completed for the following workers:

  • Independent contractors; or
  • Employee of a contractor providing contract services (such as employee leasing or temporary agencies) to your business (providing labor);

Are Schedule K1 and Owners considered employees? K-1 employees are the co-owners or partners in a business. These employees differ from W-2 and 1099 employees in several ways: (1) Partners annually file Schedule K-1 (Form 1065) to report income, deductions, gains, losses, and other business-relevant transactions from the operation of the business; and (2) Partners normally do not receive a Form W-2. Income reported on a K-1 is not subject to income tax. Partners and shareholders are not considered employees. However, on rare occasions, a partner may receive both non-taxable income to report on a K-1 and taxable income to report on a W-2. In this situation, the partner would receive taxable income and deductions using normal earning and deduction codes in the payroll system, and be considered an employee of the business.

Guidance in the Handbook for Employers M-274, states that someone that is self-employed would not need to complete Form I-9 on their own behalf unless the person is also an employee of a separate business entity, such as a corporation or partnership. In that case, the person and any other employees must complete Form I-9. So, company owners who are also employees of their own company need to complete the form. If a person is a business owner that actively performs services for a partnership or a corporation – both separate entities – and receives payment in return, an I9 form should be completed.

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