New Form I-9 Released Handbook for Employers: Guidance for Completing Form I-9 New FMLA Posting Required FELS Newsletter

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1 This article is provided courtesy of the Farm Employers Labor Service (FELS), an affiliated company of the California Farm Bureau Federation. FELS provides labor-management consultation, union avoidance, human resources education, compliance materials and products and workplace safety and health training for agricultural employers throughout California and Oregon. For more information about FELS, please contact FELS Chief Operating Officer Bryan Little at , at or visit FELS website at New Form I-9 Released U.S. Citizenship and Immigration Services on March 8 issued its much- discussed and longawaited revised Form I-9 to verify the employment eligibility of newly hired employees. Employers have 60 days until May 7 to transition to use of the new form, which is dated 03/08/13. While USCIS says employers should start to use the new edition now, they may nonetheless continue to use versions dated 02/02/09 and 08/07/09 until May 7. In revising Form I-9, USCIS set out to create a version that can be used as a fillable PDF form, to clarify its instructions, and generally to simplify its use. While a Spanish version of the new Form I-9 is available, it may be used for employment verification in Puerto Rico only. However, employers in other jurisdictions may use that version as a tool to help Spanish-speaking employees understand and complete the English version. As with its other versions, the new Form I-9 includes lists of documents acceptable for proving an employee s identity and employment authorization. Differences between the new and prior versions of Form I-9 include a new two-page format and new data fields for foreign passports and the nation issuing that passport, and the employee s telephone number and address. You can obtain the new Form I-9 at uscis.gov/files/form/i-9.pdf or fels.net/find or by calling the USCIS National Customer Service Center at USCIS also issued on March 8 a revision of its Handbook for Employers: Guidance for Completing Form I-9 to match the new form. FELS is analyzing the new form and will provide helpful information about using it as information becomes available. If you have any questions or comments, please contact us by at binfo@fels.net or call New FMLA Posting Required Effective March 8, the U. S. Department of Labor's Family and Medical Leave Act (FMLA) notice Employee Rights and Responsibilities - Under the Family and Medical Leave Act, WHD Publication 1420, was updated to reflect recent changes in the FMLA regulations. Enclosed in this month s issue of FELS Newsletter is a laminated copy of the revised notice. It is the same size as the older FMLA notice located on FELS Laminated Poster #2. Please overlay and affix the enclosed notice over the older notice on Poster #2. FELS is in the process of reprinting Poster #2 with the updated FMLA notice. Those who purchased Poster #2 on or after March 8, 2013, may request an updated replacement Poster #2 at a discount. The cost is $18.75 per Poster #2. Additional copies of the inserted FMLA notice may be purchased for $6.25 each. All purchases are subject to handling fees and California sales tax. You can order posters by calling or at fels.net/posters. California s UI Trust Fund Gap There s an old saying that when you owe the bank $1 million, you have a problem, but when you owe the bank $100 million, the bank has a problem. Unfortunately, when the state of California owes the federal government billions of dollars, California employers have a problem. Golden State employers have found themselves saddled with higher federal unemployment insurance taxes as a result. Federal law imposes this tax increase because California is running a large deficit in its unemployment insurance trust fund.

2 The state s unemployment insurance trust fund collects taxes from employers (the State Unemployment Tax Act, or SUTA taxes) to pay for UI benefits. Maintained by the U.S. Treasury Department and administered by the California Employment Development Department, this fund finances the bulk of unemployment benefits payments. The California trust fund ran out of money in January California has since been borrowing money from the federal government to make up the difference. Loans made so California can continue paying unemployment benefits total nearly $11 billion. In 2011, California began paying on the federal loans interest totaling $303.5 million, and it paid an additional $313 million in The state is borrowing from the California disability insurance trust fund to make these payments; those funds must be repaid within four years. Employers also pay a 6% tax to the federal government (FUTA, or Federal Unemployment Tax Act taxes) to finance extended benefits in high unemployment states, grants to state governments to administer UI programs and provide for a fund from which states can borrow when their state benefit funds go into deficit. Without the current deficit in California s trust fund, employers would enjoy a 5.4% FUTA credit, making the effective rate 0.6%. To begin paying back California s federal loans, the FUTA credit will ratchet down every year, eventually reaching zero in 2020, where it will remain until the loans are repaid. This is projected to happen in 2028 absent any change in current law. California employers were charged an additional $84 per worker in This per-employee tax will escalate to $105 per employee for 2013, $210 for 2018, and $420 per employee per year in The state legislative analyst estimates the increased payroll tax cost California employers an extra $290 million in 2012 and will cost $580.9 million in This situation was partly triggered by large benefit increases in 2001 with no accompanying adjustment in benefit availability, resulting in higher benefits that are easier for unemployed workers to get and are paid for longer periods. In contrast to California, many other states better control their costs by requiring workers to work longer periods to qualify for benefits, imposing longer waiting periods before unemployed persons can receive benefits and more effectively controlling how long they can receive benefits. This bad situation may not get better any time soon: Employer representatives and employee representatives disagree on an approach to benefits reform and employer taxes. Gov. Jerry Brown has instructed the Labor and Workforce Development Agency, of which the Employment Development Department is a part, to begin consulting with stakeholders to address these insolvency issues. As California s UI costs have exceeded UI tax revenues in all but two years since 2001, it seems change is long overdue. Handling the Final Paycheck for a Quitting Employee The final wages of a quitting employee become due and payable 72 hours after the quit, except they are due upon the quit where the employee gave at least 72 hours notice of his intention to quit. FELS received a disturbing report about the Division of Labor Standards Enforcement s position on an employer s obligation where a quitting employee fails to return for his or her final pay. The report was about a case where an employee, having worked only one day for his employer, never returned to the workplace or contacted the employer about his quit or to be paid his wages for that day. The employee later filed with the DLSE a claim for one day s wages and 30 days of waitingtime penalties. The waiting-time penalty is specified in Labor Code section 203. It states that an employer who willfully fails to pay wages due a discharged or quitting employee by the applicable deadline may be assessed a waiting-time penalty. The penalty is an amount equal to the employee's daily pay for each day the wages remain unpaid, up to a maximum of 30 days. By avoiding or refusing to receive payment of final wages due, an employee becomes ineligible for any waiting-time penalty for the period of that avoidance or refusal. The DLSE s longstanding interpretation in similar cases has been that a quitting employee generally must go to the employer s office to be paid his final wages for the employer to incur the waiting-time penalty for not paying them, starting with that day.

3 The DLSE apparently now expects an employer to try to contact an ex-employee to offer payment of final wages. A failure to do so triggers the waiting-time penalty. In contrast, the DLSE will not impose the penalty if the employer shows it at least tried to contact the ex-employee. If the DLSE persists in this position, an employer will find itself in the difficult position of paying the uncontested wages, fighting the penalty at a hearing, and then appealing to superior court after losing the hearing. The DLSE s new unwritten position conflicts with the pertinent Labor Code statute and the DLSE s own published interpretations that statute. Labor Code section 208 states : Every... employee who quits shall be paid at the office or agency of the employer in the county where the employee has been performing labor. The DLSE s written policies in its Enforcement Policies and Interpretations Manual are consistent with Labor Code section 208. Further, a discussion of the waiting-time penalty on the DLSE s website includes this statement: In general, employers should make diligent, good faith efforts to ensure that employees are paid, including payment of final wages. Note that should, not must, is used, in recognition that this is not a legal requirement but a statement of preference by the DLSE. Contacts with the Office of the Labor Commissioner have so far not yielded any useful guidance or clarification. FELS is monitoring this issue and will keep Newsletter subscribers abreast of any developments on it. Your Rights When Cal/OSHA Inspects A Cal-OSHA inspection can be a nerve-wracking experience for an employer, resulting in substantial penalties if the agency finds violations. It s important for you to know your rights during an inspection. It often comes as a surprise to employers that this includes the right to say no to an inspector who is asking to inspect your workplace. You can establish inspection practices and procedures, which need to be clearly understood by your supervisors and employees well ahead of time, and you should periodically remind employees about them. Your supervisors should be familiar with the company s access policies for enforcement personnel (and any visitors for that matter) and with Cal-OSHA regulations and your compliance procedures. Non-supervisory employees should be told they do not have the right to grant workplace access to Cal-OSHA and that any such inquiries should be immediately be referred to management. Employees should also understand their rights when interviewed by Cal-OSHA. When Will Cal-OSHA Inspect? Cal-OSHA is likely to come to your workplace in certain situations: An allegation of imminent danger to employees, which usually is triggered by a complaint about workplace conditions by a current or former employee, though unions and worker advocacy groups often file complaints with the agency. Investigation of a fatality or serious accident; this will immediately follow a fatality or catastrophe (an accident causing five or more employees to be hospitalized) at the workplace. A follow-up inspection, where the agency returns to your workplace to check whether you abated (corrected) a previously cited violation. A targeted or programmed inspection, which is a planned inspection generally targeted at high-hazard industries, such as agriculture. You can reasonably anticipate an inspection after an accident, and you can anticipate the possibility of a programmed inspection if you re in a high-hazard industry or if Cal-OSHA previously visited your workplace. Unfortunately the likelihood of a complaint-based inspection is nearly impossible to predict. Having your supervisors and employees trained to understand what is happening in all these circumstances can help you effectively manage a Cal-OSHA inspection.

4 What to Expect Cal-OSHA inspections are supposed to begin with an opening conference. Inspectors are supposed to present their credentials, discuss with you the reason for their visit, and disclose to you if they have a search warrant. Examine and verify the inspector s credentials, and be sure you understand why the inspector is conducting the inspection. If the inspector produces a search warrant, review and copy it, along with any other documents the inspector may give you. You can ask the inspector to wait until you or one of your managers is present or can at least be consulted. Inspectors will usually wait a reasonable time, but avoid creating the appearance of stonewalling the inspector. If the inspector does not have a search warrant, carefully consider whether you should demand one or allow the inspection to proceed without one. Demanding a search warrant before an inspection can create a hostile atmosphere in which the inspector will be looking diligently for what you have to hide. Denying access to an inspector without a warrant may be wise if you know a serious violation is likely to be found if the inspection happens. Remember that Cal-OSHA can get a warrant, if it believes it needs one, within a few days. But by observing the golden rule and treating the inspector professionally and with courtesy, you may be able to buy time without demanding a warrant. The inspector will probably be willing to delay his inspection for a limited time, on the ground that the inspection will disrupt work, or that key people are absent, or simply because you would like to consult your lawyer. Offering access to the inspector at a later time could reduce the inspector s concern that you are playing for time to fix a major safety violation. Delaying the inspection also gives you time to organize your paperwork such as injury and illness logs, training records and safety-data sheets and to inform your employees of what is about to happen. This foreknowledge can ease confusion and anxiety among your employees when a stranger with a clipboard and a camera is inspecting the premises. At the opening conference, you should establish with the inspector the scope of the inspection, including any employee interviews. The opening conference and all communication with the agency during the inspection should be handled by managers who understand your policies about workplace safety and on access for visitors, including Cal-OSHA inspectors. If possible, get the inspector to agree that time-critical work will not be interrupted by the inspection. The inspection itself can vary from a comprehensive wall-to-wall inspection to an inspection focusing on a particular activity or location. The scope of the inspection should be established with the inspector during the opening conference. You should not allow the inspector to expand a limited inspection into a wall-to-wall on his whim, and do not allow the inspector access to any part of your operation without being accompanied by you or one of your managers. What Can t Cal-OSHA Do? You have a constitutional right to insist on a search warrant before an inspection begins, but invocation of this right should be done carefully and the potential downside carefully considered. Everyone on your staff should understand that only authorized personnel may give access to an inspector, and employees should be taught to refer the matter to the right person. A Cal-OSHA inspector should not bully lower-level people in granting him access, but it unfortunately sometimes happens. Be sure your people understand what they are to do well enough so they will stand their ground when tested by sometimes aggressive OSHA inspectors. What to Do During the Inspection You should designate a senior staff person, or some other manager, to accompany the inspector at all times during the inspection. Ideally, this person should have the necessary authority to either facilitate the inspection or deny unreasonable requests from the inspector, whichever is appropriate. The person accompanying the inspector should take written notes about what the inspector examines, anything the inspector says and anything inspector does while conducting the inspection. These written notes should be strictly factual and avoid any evaluation of what the inspector sees, because these written notes may have to be surrendered in a later discovery process if the case winds up in court.

5 If the inspector takes a photo, makes a measurement or does anything similar, this should also be documented by the person accompanying the inspector. This can be helpful later in litigation, and it could give the inspector s escort an opportunity to point out a mis-measurement or other problem. Neither the escort nor anyone else representing you should ever admit to the existence of a Cal-OSHA violation, as it will likely be used against you later. Interviewing Employees The inspector generally has the right to interview employees, even to interview them privately. But you may insist that where the inspector interviews management employees, legal counsel or a company safety specialist, if you have one, is present. If possible, you or your representative should also interview any employees the inspector interviews, while being careful to avoid any appearance of intimidating employees into refusing further cooperation with the inspection. Your employees are entitled to a copy of any statement they make, and all employees should be told that they are required to answer only the questions asked and should not volunteer any additional information. After the Inspection In a closing conference, the inspector should give you details of any violations found during the inspection. After the closing conference, be sure to do a memorandum to the file documenting what was said at the closing conference. This could be useful should the case go to court later. With a little advance preparation, you can improve your chances of successfully defending against a Cal-OSHA citation, getting the agency to agree to a penalty reduction, and concluding the case quickly with minimal cost and disruption to your business.