DHS Relaxes In-Person I-9 Inspection Requirements

The physical presence requirement of the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.

On March 20, 2020, the Department of Homeland Security announced that effective immediately, the physical presence requirement has been temporarily suspended for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. On August 18, DHS announced another 30-day extension of this temporary rule. The rule is now set to expire on September 19, 2020.

The USCIS has guidance, including example forms, is available here

Limitations and Liabilities

  • If there are employees physically present at a work location, then in-person verification of identity and employment eligibility documentation for Form I-9 continues to be required. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate this on a case-by-case basis.
  • Employers may designate an authorized representative to act on their behalf to complete Section 2 and may be any person the employer designates to complete and sign Form I-9 on their behalf. However, employers are liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

Section 2 Documents Must be Inspected Remotely

Employers must still inspect the Section 2 documents but may do so remotely (for instance, over video link, fax, or email). Employers must also obtain, inspect, and retain copies of the documents they inspect, within three business days so as to complete Section 2. Employers are also directed to:

  1. Enter “COVID-19” as the reason for the physical inspection delay in the additional information field of Section 2 once physical inspection takes place after normal operations resume; and
  2. Add “documents physically examined,” with the date of inspection to either the additional information field of Section 2 or to section 3 (as appropriate) once the documents have been physically inspected.

Employers may implement remote document inspections until May 19, 2020 (“up to 60 days from the date of the announcement”) or within three business days after the termination of the National Emergency, whichever comes first. Importantly, employers who implement remote onboarding and telework policies must provide documentation for each employee. This burden rests solely with the employers.

In-Person Verification Required after Normal Operations Resume

Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of identity and employment eligibility documentation they presented for their Form I-9. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field or to section 3, as appropriate.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting date for record retention purposes for these employees only.

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Responding to Anonymous Complaints: Dos and Don’ts

If you receive an anonymous complaint, it is important to remain calm and review the complaint objectively regardless of how egregious the accusations may seem. Although the complaint was received anonymously, the company still has an obligation to take action, if necessary, to ensure that employees are provided a workplace that is safe and free from harassing or discriminatory conduct.

We recommend investigating the complaint to the extent possible given the information received. Here are dos and don’ts to keep in mind:

Do:

  • Determine if an investigation is warranted or possible. Some complaints will not require an investigation, and some may not even require follow up (e.g., personality conflicts do not require investigation and complaints about the brand of sparkling water stocked in the kitchen do not require any follow up).
  • Begin your investigation as soon as possible and plan to conclude it within a timeframe that is reasonable based on the complaint. Physical harassment and serious safety complaints, for instance, should be addressed immediately and resolved within days. Other harassment investigations should be concluded within two weeks.
  • Take a measured approach, keeping in mind your intent is first to confirm whether the complaint is valid and take appropriate action if you determine that it is.
  • Focus on the (alleged) facts presented and do the best you can with what you’ve been given. Anonymous reports are definitely harder to follow up on, but the option of anonymity will hopefully result in more situations being brought to your attention before they turn into bigger issues.
  • Interview those you know are involved. If only a certain group, location, or department is named, start by speaking to other employees who may have experienced the same behavior. For instance, if someone registers a complaint that the Director of Engineering made sexist remarks, first interview the director’s subordinates; if you call the director in first, they will likely deny the accusation and may treat their subordinates worse, making others afraid to tell the truth about the behavior when interviewed later.

Don’t:

  • Panic. All you can do is your best!
  • Jump to conclusions or rush to judgment.
  • Dismiss complaints just because the anonymity of the reporter makes it more difficult to investigate.
  • Assume the complaint is valid or invalid before doing preliminary research.
  • Retaliate against the suspected complainant or witnesses.
  • Discuss the matter with anyone who is not relevant to the investigation. Share the complaint only with those who need to know about it. Sharing the contents of an anonymous complaint with those who don’t need to know about it will only discourage reporting in the future.

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Six Tips for Managing Stress in the Workplace

We’re all supposed to feel stress from time to time. It’s the way the body responds to demands and dangers. A stressful event triggers the release of hormones. These hormones, according to Psychology Today, “increase heartbeat and the circulation of blood to support quick action, mobilize fat and sugar for immediate energy, focus attention to track the danger, prepare muscles for movement, and more.” This fight-or-flight response helps us overcome these challenges. It can save our life before we realize we’re in danger.

We are not, however, supposed to feel stress all or most of the time. Stress, particularly the regular or chronic variety, can lead to illness and other mental and physical health problems. As Sarah Noll Wilson notes, stress also makes it more difficult for us to access higher level brain functions like logic, reasoning, problem solving, listening, and empathy—all of which are useful for managing stress!

It’s no secret, unfortunately, that many of us live overly stressful lives, more so now that we’re in the midst of a pandemic. Some days we may feel overwhelmed by stressful situations and overloaded with stress hormones, and it’s no mere coincidence that on these days we seem less able to think clearly and work collaboratively. We’re literally chemically hindered from doing so.

Why is the workplace so stressful?

The workplace is a high-risk environment. First, there’s the risk of failure and its consequences, such as a missed deadline that may jeopardize a deal. Second, there’s the risk of bad outcomes from the employment relationship, such as when an employee reveals trade secrets to a competitor or a manager retaliates against an employee for reporting harassment. Related to this second risk is a third one: the liability brought about by all of the laws that govern the employment relationship. As we know, compliance obligations are a big stressor for employers.

In addition to these stressors are less-noticed ones. Feelings of loneliness and isolation can add to a person’s stress at work, as can mental conditions like depression, anxiety, and OCD. Employees without a strong support network or those experiencing mental illness may have an even more difficult time managing common workplace stressors. Worse, their additional struggles are often invisible to managers and peers.

Similarly, managers and peers are often unaware that some employees are experiencing the stress of microaggressions (explained below) and subtle forms of oppression and discrimination. In an interview with Forbes, Minda Harts explains what it’s like to be the only or one of only a few women of color in the room: “After a while, you just start to settle into the microaggressions, you start to settle into the isolation, and you start to question everything you’re doing, and your expertise.”

And now, added to the mix, is the COVID-19 pandemic, which, to quote Sarah Noll Wilson, means “living with the constant hum of a threat” and with fewer moments “where our brain can properly rest while we still go about our day.” That’s a big issue. Chris Weller at the NeuroLeadership Institute writes, “Just as a sponge can only soak up so much water, and a computer can only process so much information, our brains have finite holding power. After a certain point, we all need to stop working, rest, and recharge.”

What employers can do to make the workplace less stressful

Not every stressor in the workplace can be eliminated, but some can. In any case, stress can be managed. It doesn’t have to have the last word. Here are some practices that can help make the workplace less stressful:

  • Don’t assume the worst. Because the workplace is home to so much stress, it’s easy to grow cynical about the employment relationship. It’s true that there are bad employees, horrible bosses, and toxic cultures. Workplace problems can be entrenched and systematic. Nonetheless, the employment relationship isn’t uniquely bad among human relationships, and it’s a mistake and counterproductive to think it is. There are star employees, terrific bosses, and great places to work—and these aren’t rare. Assuming the worst about employers or employees, or seeing them primarily as threats or liabilities, is like assuming all your friends are going to betray you. It’s an attitude that creates more drama, adds more stress, and ruins otherwise functional relationships. So, as Cy Wakeman says in her book No Ego, “stop believing everything you think.” Instead, advises Wakeman, ask yourself what you know for sure and base your thinking and your decisions on what is, in fact, real. Tell your employees to do the same.
  • Always act in good faith. There are times when the right thing to do is going to cause someone stress. For employers, it might be discipline for a policy violation, a poor performance review because of unmet expectations, or a layoff due to a shortage of work. For employees, it might be providing candid feedback to a peer, asking a coworker to cover a shift, or setting a hard deadline for a project. At some point, you’re going to cause someone stress, and that’s likely okay. The important thing is not to try to spare people necessary stress, but to approach decisions that will cause someone this stress in good faith. Good faith shows that you care about their success and wellbeing. It also helps put others in a better frame of mind to accept the demands or pressures placed upon them.
  • Address sexism, racism, and other forms of inequality. These are stressors that every employer should be acknowledging and working to eliminate. Unlike other stressors, they are not inevitable.
    Microaggressions, in particular, deserve to be called out. Writing in Harvard Business Review, Ella F. Washington, Alison Hall Birch, and Laura Morgan Roberts explain that microaggressions are “verbal, behavioral, and environmental indignities that communicate hostile, derogatory, or negative racial slights and insults to the target person or group. For Black people, they are ubiquitous across daily work and life.” These indignities are not “small,” as the term micro might seem to imply, but rather frequent and casual.
    The authors cite research suggesting that “subtle forms of interpersonal discrimination like microaggressions are at least as harmful as more-overt expressions of discrimination.” For one thing, continual hostility and discrimination rob people of the time and space they need to rest and recharge.
    In these situations, employers have a responsibility not only to help employees manage their stress, but also, and more importantly, to do everything they can to put a stop to the hostility and discrimination that’s causing the stress. Sexism and racism, subtle or overt, must not be tolerated.
  • Promote support networks. We’re not meant to struggle with stress alone. We need others, and they need us. You can facilitate friendships and support systems among employees by setting up virtual chat programs and video conferencing apps (and in-person spaces for fun when the pandemic is over). Reassure employees that it’s fine for them to take a little time during the workday to reach out to others about non-work matters and participate in virtual games and other fun group activities. Managers can set the tone by participating in these chats and activities and encouraging employees to join in.
  • Provide mental health benefits, if possible. In some cases, employees who want to get the mental health care they need can’t afford the costs. Losing pay from a missed work shift might be too great a hardship, and effective treatments might be financially out of reach. These financial hindrances can exacerbate stress. In other cases, employees can afford the time off and the treatments, but they can’t make regular appointments work with their schedules. If you can offer paid time off, health insurance benefits, or flexible schedules, these can help employees get the care they need.
    An Employee Assistance Program (EAP) may be another great option for employees feeling overwhelmed by stress. It gives employees access to expert, confidential assistance for substance abuse issues, relationship troubles, financial problems, mental health conditions, and other major stressors.
  • Give people permission and time to rest and recharge. When a workplace situation causes someone to have a fight-or-flight response, it may be best for them to remove themselves from the situation before they say or do something they later regret or that causes more harm. Make sure employees know that they can remove themselves from an overly stressful situation. They shouldn’t have the added stress of worrying that they’ll be punished for doing what they need to do to de-escalate the situation or get away from it so they can calm themselves and refocus.

Aside from allowing these in-the-moment decisions to pause and step away, consider setting time aside during the week or month for employees to participate in activities like yoga, meditation, and mindfulness. There are known techniques, such as deep breathing, for eliciting a relaxation response when someone is experiencing stress. Educate yourself and your employees on these healthy practices for managing stress.

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Don’t Forget to Document, Document, Document

With all of the changes everyone has had to make over the past few months, not to mention the heightened stress we’re all feeling, it may be tempting to let certain practices slide or be less strict about following particular workplace policies. Flexibility during crisis situations may make sense in certain situations, but there are some areas where you don’t want to fall short of your usual standards. Documentation is certainly one of those.

Documenting decisions you make as an employer can feel like an extra, unnecessary step. It is additional work, after all, and that work adds up. Nevertheless, documentation is an important part of risk management, and the price of not documenting your actions can far outweigh the costs of doing so, especially if an employee were to ever allege discrimination.

When we talk about discrimination in the workplace, we’re not referring simply to the act of treating people differently or giving someone preferential treatment. Employers rightly treat individuals differently all the time. People are placed in different jobs, receive different pay, and work different hours. Some have better parking spots than others, vegetarians may get a special meal when lunch is ordered for the office, and the big boss may get away with a gruff personality while others are expected to be more cordial. 

Rather, when we talk about the discrimination that employers need to avoid and prevent, it’s discrimination that’s based on an employee’s inclusion in a protected class. A number of laws at both the federal and state levels make workplace discrimination unlawful if it is based on race, color, age (over 40), sex, pregnancy, religion, disability, national origin, ethnic background, genetic information (including that of family members), military service, and citizenship or immigration status, among other classes.

The best way to avoid discrimination is to base employment decisions only on factors that are job-related, and this is where documentation comes in. Documenting the job-related reasons for your business decisions helps show that your decisions were not done for discriminatory and illegal reasons. Absent that documentation, you have nothing to show the legitimate basis of your decisions if any of your employment decisions are challenged. That makes it harder to prove that you weren’t discriminating unlawfully. Below are a few areas where documentation is especially important.

Discipline and Termination

Documenting all the actions you take to warn an employee about poor performance or unacceptable behavior before terminating their employment demonstrates that you made a good faith effort to help the employee meet expectations and avoid termination. You’re on safest ground terminating employment if you can show that the employee understood what was expected of them and what would happen if they failed to improve.

Investigations

Make sure that you document every step of an investigation as well as the resulting actions taken so you can show that you fulfilled your legal obligations. Having a clear record will also help you ensure that similar situations are handled consistently in the future.

Hiring

Employers sometimes get into trouble with the law by asking questions of job candidates that reveal their membership in a protected class. Asking about church attendance, for example, may be intended to ascertain weekend availability, but it gives the applicant an opportunity to claim they were discriminated against. Hiring decisions should be based on job-related factors. Proper documentation shows that they were. 

Promotions and Pay

Documentation here should show that pay and promotion practices are systemized and based only on bona fide job-related reasons. The federal Equal Pay Act requires men and women in the same workplace be given equal pay for equal work while Title VII of the Civil Rights Act requires that employers not discriminate based on someone’s inclusion in a protected class. If you lack documentation explaining why one employee is paid more than another in the same position, your risk of being sued (and losing) goes up substantially. 

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Can we help you with your documentation?

Contempo COVID-19 Employer Update

The IRS and U.S. Department of Labor announced their plans for new Federally mandated paid sick leave with Families First Coronavirus Response Act (FFCRA).
Employer items to note include:

  • Employees directly affected by COVID-19 illness are entitled to up to 2 weeks of fully paid Emergency Paid Sick Leave.
  • Employees can also receive benefits under the Emergency Family Medical Leave Expansion Act. This will provide both job-protected leave and 2/3 replacement pay during a period of absence from 3 to 12 weeks for absences related to the care of a child during school shut-downs.
  • Both of these new leaves will be paid by employers and funded by the US government via the retention and use of payroll tax funds employers would otherwise pay to the IRS in the form of 941 payroll tax deposits. If those amounts are insufficient to cover the cost of the new paid leave, employers can seek an “expedited advance” from the IRS by submitting a “streamlined claim form” that will be released shortly.
  • The Department of Labor and the IRS will be providing additional details and guidance on the specifics and the implementation of the FFCRA on March 25th.
  • The Department of Labor will also release a new required workplace poster outlining these new employee rights under the FFCRA.

It may be hard for business owners affected by COVID-19 business slowdowns to imagine how they can bear additional effort and expense. We encourage anyone with these concerns to read the information in the web links below carefully:

We encourage all Contempo HCM clients to visit our online HR Support Center for additional tools and resources related to COVID-19. We are continually updating our HR Support Center as new information and guidance becomes available. You can learn more about the details of these leaves (who is covered, what it’s for, duration, etc.) on the HR Support Center by searching for “FFCRA.”

Keep an Eye on these Important Employee Issues!

The US economy continues to surge forward. Many companies are expanding and hiring new employees. This is generally great news. However, hiring new staff can make payroll management (already a challenge for many firms) far more difficult. If your firm is in the hiring cycle keep an eye on the following three critical employer issues:

1. Increased Employer Costs

Most employers understand they must withhold taxes from employee checks. However, employer taxes such as Social Security, Medicare and unemployment tax are your firm’s financial obligation. These employer tax burdens increase with each new hire. Additionally, firms should consider their increased worker’s comp and benefit costs when hiring new employees.

2. Proper Employee classification

Employee misclassification is always a hot IRS topic. However, in recent years the DOL has also entered agreements with many state agencies to cooperate in pursuing enforcement against employers for misclassification of employees as independent contractors.

Independent contractor misclassification isn’t the only type of misclassification on the government’s enforcement radar. Special attention must also be paid to regulations regarding the determination of whether employees qualify for the “white-collar” exemptions from the FLSA’s minimum wage and overtime requirements. Employers must ensure compliance with minimum salary requirements and worker “duties” tests.

3. Recordkeeping

The DOL requires every employer covered by the FLSA to keep time clock records for each nonexempt worker. The law doesn’t specify the form of records, but they must include certain identifying information including the employee, the hours worked and the wages earned. Payroll records should be retained for at least 4 years including records for wage computation. These records include time cards, wage rates and records of additions or deductions from wages.

Ongoing challenges

Employers must remain vigilant regarding changes to federal and state laws/regulations that affect payroll taxes and other employee compensation issues. Do NOT assume you can put payroll management on autopilot!

©2019 Thomson Reuters

Contempo HCM launches to provide Arizona business owners with payroll and human capital management technology

Payroll executive and entrepreneur, Lawrence Bailliere, BeachFleischman PC, one of Arizona’s largest locally-owned CPA firms, and Pinnacle Plan Design, LLC, a third-party administrator (TPA) for employer-sponsored qualified retirement plans, announce the formation of a joint venture to launch Contempo HCM, LLC, an Arizona-based payroll and human capital management company. Bailliere has been named CEO and will lead the company’s growth and strategic vision. BeachFleischman and Pinnacle Plan Design will offer Contempo’s services to its clients. Additionally, BeachFleischman will provide the company with operational support. Contempo HCM was launched to meet the workforce management needs of Arizona business owners operating in the small business and middle-market sectors.

Contempo HCM operates as an iSolved Certified Network Partner. The iSolved Network is an ecosystem for elite, high-growth payroll service providers utilizing the iSolved platform to deliver a complete set of workforce solutions to their clients. Contempo HCM’s cloud-based workforce management solutions include payroll, time & attendance, HR administration, and electronic benefit administration.

According to Lawrence Bailliere, “We shared the same vision with BeachFleischman and Pinnacle Plan Design, and that made this new venture possible. We are excited about the opportunity to help business owners drive down the cost and complexity of managing a workforce. Our system provides real-time data and immediate access to information for better decision-making. We want our clients to focus on their core objectives while outsourcing the risks and burdens associated with the changing employer and workforce management environment. We mitigate the need for separate workforce management solutions by delivering a customized, configurable, end-to-end experience using one technology solution.”

Marc Fleischman, BeachFleischman’s CEO said, “We are thrilled about the incredible opportunities that Contempo brings to the marketplace. It’s locally-owned, and Larry is a proven industry thought leader and entrepreneur who will leverage the talents of his team to help our current and future clients accomplish their goals.”

Kevin Donovan, Managing Partner of Pinnacle Plan Design, LLC said, “We’re really excited about the opportunity to deliver a more seamless administrative process to our 401(k) clients, and removing their burden to provide complete and accurate indicative employee data which can now be accessed by us directly, 24/7.”

Contempo HCM is headquartered at 5872 E. Pima Street in Tucson, AZ and has an office at 2201 E. Camelback Road in Phoenix, AZ.