All posts by stu

Audits, Compliance, E-Verify, I9 Form, Immigration, USCIS

Waste Management Master Services Agreement (MSA) Contractor I9 Audit Services

Consultstu LLC was recently retained to be a third-party auditor to review and certify for compliance that Form I9s (along with E-Verify cases and copies of employment eligibility documents) were being maintained by a Contractor of Waste Management National Services, Inc. According to the Waste Management Master Services Agreement (“MSA”), Contractors are required to comply with all immigration laws and Waste Management can require an independent audit to verify compliance.

For many years, we have performed independent immigration reviews for Publix Suppliers. The Waste Management auditor certification requires very detailed responses to specific questions about the I9 Forms, E-Verify cases and employment eligibility and identity documents. The Waste Management audit is focused only on statistics concerning employees of the Contractor who worked at Waste Management sites, and does not require responses about employees that were considered for assignment at Waste Management, but were never deployed there.

Here are some of the Waste Management audit areas of inquiry:

  • Is there a correctly completed I9 form for all employees? How many I9s were reviewed?
  • Were copies of the supporting employment eligibility and identity documents maintained? Were they reviewed by the auditor?
  • Were technical violations found on the I9 forms? Were these errors corrected?
  • How many I9s had substantive violations?
  • Did any employment eligibility and identity documents appear to be tampered with or fraudulent on their face?
  • Were any I9 forms not completed in their entirety? Were violations remedied?
  • Was an E-Verify case created and properly & timely closed for each employee? Are there any unclosed E-Verify cases?
  • Were copies of photo-matching documents maintained by the company and used for the employee cases?
  • Did any E-Verify cases result in a Tentative Non-confirmation? Were they remedied?

Due to our extensive experience with human resources practices and I-9 forms, we have served as the independent third-party auditor for many large and small companies around the United States. Our remote review services are available if your company has been asked to complete a third-party independent audit of its immigration practices. Stuart Charlson has over 27 years of experience with human resources consulting and compliance services for small to mid-sized businesses.

In addition to independent audit services, we also provide proactive consulting services to companies needing assistance with immigration compliance and reviews of immigration documentation. For more information about our services, contact our office at 727-350-0370.

401(k), Affordable Care Act, Compensation, Compliance, Department of Labor, Employee Handbook, Employment Poster, Holidays, I9 Form, Minimum Wage, W2, W4

Checklist of 2024 New Year HR and Payroll updates

It’s almost 2024, so now is the time to review and update your company’s HR and payroll practices and documents for the new year. With 2023 ending, there are several human resources and payroll items to review and update for January. Here is Consultstu’s 10 point HR and Payroll checklist for 2024 – start now to complete the needed HR and payroll updates.
1. Update the new hire packet with 2024 documents. Replace your W4 with the 2024 version. Optional – send the new W4 to existing employees in January to see if they would like to make changes for 2024.
2. Check to ensure you are using the latest Form I-9 (expiration date for 2026). Use E-verify to take advantage of the remote document review process.
3. Go through terminated employee I9s and purge old I9 forms. The I9 retention rule is a minimum of 3 years or 1 year after termination, whichever is longer.
4. If group insurance plans renew on January 1, update the DOL Healthcare Exchange form (mandated by ACA) with current group health insurance renewal information (contribution cost and eligibility) and add to page 2
5. Check the Florida and federal workplace posters to ensure the latest versions are posted. See the Florida Department of Economic Opportunity webpage for free versions.
6. Review, update and post the updated observed holiday schedule for 2024 (here is the 2024 federal holiday schedule) and add to the Employee Handbook. It’s also a Leap year!
7. Review recruiting and retention strategies for 2024 to stay current with the labor market conditions. Check the trending labor rates for key positions and obtain current compensation data to validate existing salary bands. Florida DEO publishes quarterly salary data.
8. For 2024, 401k plan contribution limits will increase in 2024 to $23,000 by the Internal Revenue Service. The catch-up contribution limit for employees aged 50 and over who participate in 401(k) remains the same at $7,500. Read more about it.
9. Check minimum wage rates (Florida MW rate increased to $12.00 per hour on September 30, 2023). The federal DOL plans to raise the minimum salary level for exempt employees to $1,059 per week (starting April 2024) – a 55% increase, so be prepared.
10. Update your travel policy to adjust to the new IRS 2024 mileage rates. If your company provides mileage reimbursement, review the new rates effective January 1st, 2024. The rate increases to 67 cents per mile (up 1.5 cents per mile).
Here is one last recommendation. To prepare accurate W2s and 1099 forms at the end of January, obtain employee consent to electronic delivery of their W2 forms. Per IRS regulations, employers need affirmative consent from an employee in order to deliver Forms W2 electronically.

Happy new Year!

Compliance, DOT, Drivers, Drug and Alcohol, Drug Free Workplace, HR Compliance, Risk Management

DOT Announces Approval for Oral Fluid Testing, Part 40 Changes (but not yet…)

Effective June 1, 2023, the Department of Transportation (DOT) authorized oral fluid testing for the first time, marking a significant shift away from urine-only drug testing policies. This change provides employers with greater flexibility while affording employees enhanced privacy. The final rule, among other items, amends the DOT’s regulated industry drug testing program to include oral fluid testing. However, DOT oral fluid testing cannot be implemented until the Department of Health and Human Services (HHS) certifies at least two laboratories (one to serve as a primary laboratory, and a second to serve as a split specimen laboratory). The DOT press release provided everyone with a listing of HHS-certified laboratories https://www.transportation.gov/odapc/labs.

The new regulation is not proposing to eliminate urine testing; rather, oral fluid testing will be an alternative.  Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use.  Most significantly, DOT’s new rule states that the oral fluid testing window of detection for marijuana is up to 24 hours, whereas urine testing’s window of detection for marijuana is 3 to 67 days.

What do you need to know about the use of oral fluid testing and Part 40 changes?

  • Employees can be subject to either an oral fluid collection or a urine collection for any DOT-regulated test (pre-employment, random, reasonable suspicion/ cause, post-accident, return-to-duty, or follow-up).
  • The employer can choose to conduct an oral fluid or a urine test, for the test reason.
  • It is a best business practice to have a standing order in place with each collection site, so they know what kind of collection is to be performed (i.e., urine or oral fluid) and when.

There are also some changes for Substance Abuse Professionals (SAPs). A SAP evaluation may be conducted remotely as long as the technology used permits real-time two-way audio and visual interaction between the SAP and the employee.

Lastly, there are a few changes relating to Medical Review Officers (MROs).

  • MRO staff (not just an MRO) may contact a pharmacy to verify a prescription that an employee has cited as a potential legitimate medical explanation for a laboratory-confirmed positive test.
  • MROs are not required to undergo recertification training, but it is strongly suggested that MROs seek supplemental information about oral fluid testing by the time HHS certifies at least two laboratories to conduct oral fluid testing.

All employers with regulated employees should view the new final rule on ODAPC’s website.

Employee Policies, Human Resources, Management, Performance Improvement Plan

Phrases to Improve Employees with Attitude Problems

We often talk to clients who have an employee who has started to demonstrate a poor attitude at work (non-cooperative, lack of communication, negative comments, etc…) at work. Can these employees be saved? When addressing an employee’s attitude problem in a performance review, it’s important to provide constructive feedback that focuses on specific behaviors and offers guidance for improvement. Trying to address problem employees requires careful language and an emphasis on believing in their potential for improvement. Here are some performance review phrases that can help address performance problems and attitude issues while maintaining a professional and supportive tone:

  • Problematic Communications – “I’ve observed instances where your communication style has come across as negative and dismissive. It’s important to work on conveying your ideas and feedback more respectfully and openly. It will encourage better communication and collaboration.”
  • Impacting Others – “It’s important to be aware of how your words and actions impact others and it can greatly improve team dynamics. Please work on being more attuned to your colleagues’ needs and the impact of your actions and words.”
  • Adaptability – “During challenging situations, maintaining a flexible attitude is key. I’d like to see you respond to changes and challenges with a more adaptable and solution-oriented approach.”
  • Managing Conflict – “Strive to handle disagreements in a more diplomatic and calm manner, seeking common ground and understanding. Focus on resolving disagreements with a cooperative and solutions-oriented mindset.”
  • Customer Service Oriented – “In customer interactions, a positive attitude is essential. I encourage yiou to work on delivering exceptional service by projecting a more approachable and helpful demeanor.”
  • Being Team Oriented – “Your attitude and deameaner has a direct influence on our team dynamics. Taking action to foster a more positive atmosphere, you can contribute to a more cohesive and productive team. You can impact the team more effectively by showing a positive attitude.”

The key to constructive feedback during a performance review is to provide specific actionable recommendations that focuses on observed behaviors and suggests ways for improvement. Frame the feedback in a way that presents the problems and encourages the employee to take ownership of their attitude and actively work towards a positive change.

Compliance, Employee Handbook, Employee Misconduct, Employee Policies, Employee Rights, Firearm, Florida rules, Risk Management

What Should Employers Know about Florida’s New Constitutional Carry Law?

On July 1, 2023, Florida House Bill 543 became law and authorized the concealed carry of firearms with or without a license to carry. So-called Constitutional Carry means that a permit is not required to carry a concealed firearm. There are a lot of myths and misunderstandings about the new law so various law enforcement agencies published Permitless Carry – Myth versus Fact. Here are the main takeaways:

  • Open Carry is still illegal in most circumstances in Florida (traveling to and from hunting, camping, and target shooting).
  • Constitutional carry does not change who can purchase a firearm or the waiting period to purchase a firearm.
  • To carry a concealed firearm in Florida, a person must still meet the same criteria required to apply for a concealed weapon permit (at least 21 years old without a felony conviction or other disqualifying conditions.
  • The new law does not change where you can carry a firearm. You can not carry a firearm anywhere that a private business or property owner has prohibited them or anywhere outlined in the FL statute 790.23.
  • Concealed weapons permits (CWPs) are still issued by the Florida Department of Agriculture.

Under the new law, employers are prohibited from:

  1. Conditioning employment on any agreement with an employee or customer that prohibits them from keeping legal firearms locked inside a private vehicle in a parking lot for lawful purposes.
  2. Trying to prevent employees or customers from entering an employer parking lot because their private vehicle contains a legal forearm that is being carried for a lawful purpose and is out of sight within the vehicle.
  3. Discharges or discriminates against an employee or customer for exercising their constitutional right to keep and bear arms or exercising their right to self-defense (as long as they never exhibit a firearm on employer property for any reason other than lawful defensive purpose.
  4. Violate privacy rights of employees or customers through verbal or written inquiries regarding the presence of a firearm inside a locked private vehicle in a parking lot to determine whether a firearm is in the vehicle.
  5. Take any action against an employee based on anybody’s verbal or written statements regarding the storage of a firearm inside a private vehicle in a parking lot for lawful purposes.

Employers are also immune from lawsuits for the actions they take or do not take in order to comply with the new rules on firearms in employer parking lots (no immunity for any actions not related to the new law). The Florida Attorney General is in charge of investigating employers that violate the law and employers that violate the law may be ordered to stop, assessed damages, fined, plus attorney fees and court costs. There is also a private right of action and employees can sue their employers for personal costs and losses caused by the employer’s violations, plus attorneys’ fees and court costs.

Lastly, employers drafting a workplace violence or firearms policy for its Employee Handbook should be sure to review the new law and make sure that any firearm restrictions do not prohibit firearms that are stored in an employee’s private vehicle in the company parking lot. Employees cannot be disciplined for exercising their right to keep a lawfully obtained firearm in their personal vehicle in the parking lot.

Employee benefits, General HR Questions, Human Resources, Payroll, Record Keeping

Employee Name Change Checklist for Human Resources

If your employee has reported that they have legally changed their name, here are the items you will want to review and make sure are updated.

  1. Request that the employee complete a name change form, or complete an HR employee change form, or maintain the email request from the employee about their name change.
  2. Request and copy their new social security card, or judicial order document, that officially changes their name. A name must be legally changed in order to change the name in payroll and with benefits. To avoid mismatches at the SSA, keep the employee’s former name in your payroll system until they update it with the Social Security Administration and provide you with proof via their Social Security card.
  3. Have the employee complete a new W-4 to ensure their name and Social Security Number will match on their W-2.
  4. Although not required, the US Citizenship and Immigration Services (USCIS) recommends that you note the name change on Supplement B (new I9 form), but it’s not required.
  5. Update your employee records system and notify your payroll processor.
  6. Notify the IT Department so that computer, email and phone extension are updated.
  7. Update Org Chart (unless it is automatically made in the payroll system) and update the phone directory, if not connected to payroll system.
  8. Update benefits admin system (or make changes with the carriers directly) to reflect the new name (health and welfare, as well as retirement plan).
  9. Depending on the reason for the name change, the employee may also need to make midyear changes to their benefits if there are updates to their family status and dependents.
Compliance, E-Verify, HR Compliance, I9 Form, Immigration, New Hire, USCIS

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.

Compliance, I9 Form, Immigration, USCIS

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.

Compliance, E-Verify, Florida rules, Hiring, HR Compliance, USCIS

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.

Compliance, E-Verify, Human Resources, I9 Form, Immigration, USCIS

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.

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