CLICK HERE TO ACCESS NEW I-9 FORM AVAILABLE 8/1/2023

Employers can use the previous version of the form through Oct. 31, 2023.

After that, all employers must use the new Form I-9.
The new form is scheduled to expire July 31, 2026. 

NLRB Adopts New Standard for Reviewing Workplace Policies

The National Labor Relations Board (NLRB) has adopted a new standard for determining whether an employer’s policy violates Section 7 of the National Labor Relations Act (NLRA). The NLRB began applying the standard immediately.

Background

Under Section 7 of the NLRA, employees have the right to act together, with or without a union, to improve wages and working conditions, and to discuss wages, benefits, and other terms and conditions of employment. The NLRB’s interpretations of how employer policies may violate Section 7 protections have changed over the years.

New Standard

The NLRB recently announced that it is adopting a new standard for reviewing employer polices that builds on and revises a standard that was adopted during the Obama Administration but was later replaced during the Trump Administration.

Under the new standard (see NLRB Case Number 04-CA-137660 ), the NLRB will:

• Analyze whether a challenged work rule has a reasonable tendency to chill/discourage employees from exercising their Section 7 rights; and
• Interpret the rule from the perspective of a reasonable employee who is economically dependent on their employer (and thus inclined to interpret an ambiguous rule to prohibit protected activity in which they would otherwise engage).

If it is shown that an employee could reasonably interpret a rule to restrict or prohibit Section 7 activity, the rule will be considered presumptively unlawful even if:

• The rule could also reasonably be interpreted not to restrict Section 7 rights; and
• The employer didn’t intend for its rule to restrict Section 7 rights.

However, an employer may rebut that presumption by proving that:

• The rule advances a legitimate and substantial business interest; and
• The employer is unable to advance that interest with a more narrowly tailored rule.

Next Steps

• With the help of legal counsel, make sure policies are drafted carefully and narrowly, providing sufficient details and context to make it clear that the employer’s rules don’t infringe on protected activity.
• Watch for additional guidance from the NLRB

  Pregnant Works Fairness Act (PWFA) Takes Effect

Employers' obligation under the Pregnant Workers Fairness Act to provide reasonable accommodations for known limitations connected to pregnancy, childbirth or related medical conditions is now in effect. Click here for more information.

OSHA Expands Injury and Illness

Reporting Requirement
More employers will be required to submit workplace injury and illness information under a final rule released by the U.S. Occupational Safety and Health Administration (OSHA). 

Remote Form I-9 Alternative Procedure

The U.S. Department of Homeland Security (DHS) issued the unpublished final rule for the authorization of an optional alternative procedure to the in-person physical examination of the documentation presented by individuals seeking to establish identity and employment authorization for the purpose of completing the Form I-9, Employment Eligibility Verification (the “Remote Form I-9 Alternative Procedure”).

This long-awaited final rule permits the permanent use of a Remote Form I-9 inspection procedure for employers who are participants in good standing in E-Verify. Use of the Remote I-9 Alternative Procedure will be available beginning on August 1, 2023, and is entirely optional.

Set to be officially published on July 25, the key components of the alternative procedure are:

1. Eligibility is limited to employers who are E-Verify participants in good standing;
2. Expanded document retention requirements to include clear and legible copies of all presented documents for the Form I-9;
3. Training through E-Verify is required; and
4. Employers conducting a live video interaction after the employee transmits to them a copy of the document(s) must offer at least an equivalent level of security as compared to physical document examination.
5. Eligible employers will not be required to physically inspect the documentation of employees hired under COVID flexibilities if they meet certain requirements.

Here are additional details about the new Remote Form I-9 Alternate Procedure:

• Qualified Employers: The new procedure is available only to qualified employers, meaning those employers who are participants in good standing in E-Verify.
• Document Verification: The employee must first transmit a copy of the document(s) to the employer and then present the same document(s) during the live video interaction. The qualified employer (or an authorized representative acting on the employer’s behalf such as a third-party vendor) must examine a copy of each document presented by the employee.
• Document Retention: Qualified employers who use the new Remote Form I-9 Alternate Procedure must retain a clear and legible copy of all documents presented by the employee seeking to establish identity and employment eligibility for the Form I-9.
• E-Verify System: E-Verify will electronically compare information entered by an employer from an employee’s Form I-9, Employment Eligibility Verification to records available to DHS and the U.S. Social Security Administration (SSA) to confirm the validity of identity and employment authorization documents.
• Training: Employers who enroll in E-Verify and any users who manage and create E-Verify cases must complete an E-Verify tutorial that includes fraud awareness and anti-discrimination training. The tutorial is free and accessible as part of the E-Verify enrollment process to any users who manage and create E-Verify cases.
• COVID Form I-9 Flexibilities: For employers that used the COVID Form I-9 flexibilities that are set to expire on July 31, they will not be required to physically inspect the documentation of those hired under those flexibilities if they (1) were enrolled in E-Verify at the time of hire; (2) created an E-Verify case for that employee; and (3) performed the remote inspection between March 20, 2020, and July 31, 2023. If these conditions are not met, an employer will have to physically inspect the documentation of those hires before August 30.
• I-9 Reporting Requirements: Qualified employers must indicate by completing the corresponding box on the Form I-9 that an alternative procedure was used to examine the documentation for either Section 2 or when conducting re-verification.
• Use of Form I-9: As of August 1, 2023, employers should begin using Form I-9 with a version date of “(Edition: 08/01/2023)” to comply with their employment eligibility verification responsibilities. However, employers may continue using the prior version of Form I-9 (Edition: 10/21/2019) through October 31, 2023. If using the 10/21/2019 version of the Form I-9 Alternative Procedure, employers must indicate their use of the alternative procedure by writing “alternative procedure” in the “Additional Information” field in Section 2.

NLRB Changes Standard for Employers Disciplining Misconduct

It will be harder for employers to discipline or fire workers who display offensive conduct while engaged in activity protected under the National Labor Relations Act, based on a ruling from the National Labor Relations Board (NLRB). 

Make Sure Generative AI Policies Cover Intellectual Property

Generative artificial intelligence, such as ChatGPT, should be used in the workplace only when policies are in place to ensure a company’s intellectual property isn’t lost and that trade secrets aren’t being disclosed, legal experts say.

COVID-Related Form I-9 Flexibilities Set to Expire July 31, 2023

On May 4th, the U.S. Immigration and Customs Enforcement (ICE) reconfirmed that the current COVID-related Form I-9 flexibilities are set to expire on July 31, 2023. According to ICE, employers will have 30 days after the deadline to ensure that they are in compliance with pre-pandemic I-9 processes.

ICE recommends that “employers who have been using those temporary flexibilities plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed.” Essentially, before August 30, employers that utilized the flexibilities for their Form I-9 onboarding will need to physically inspect employment and identification documentation for those hires.

SHRM has led advocacy efforts to modernize Form I-9, which resulted in the extension of Form I-9 flexibilities. It also prompted the Department of Homeland Security (DHS) to formalize the authority of the Secretary of Homeland Security to extend flexibilities, provide alternative options, or conduct a pilot program that would permit remote inspection of employee identity and employment authorization documents. DHS is still reviewing the public comments from its August 18, 2022, proposed rule, which includes SHRM’s public comment. DHS announced that it plans to release a final rule “later this year.”

SHRM believes the Form I-9 process must reflect the needs of the modern workplace, which includes permanent remote Form I-9 preparation to support efficient onboarding processes for HR professionals. SHRM stands ready to partner with federal agencies to ensure that the final regulation reflects the reality of today’s and tomorrow's U.S. workforce and leverages current and emerging technologies.

Please stay tuned for more updates on this critical workplace issue.

Supreme Court Upholds Salary Requirement for Overtime Exemption

2/22/2023:  In Helix Energy Solutions Group v. Hewitt, the Supreme Court ruled 6-3 that a former employee who made more than $200,000 a year was eligible for overtime pay, as he was paid on a daily basis.

Questions Remain About Proposed Revisions 

to Overtime Rule

This spring, employers are expecting to learn about the U.S. Department of Labor’s (DOL’s) proposed changes to the overtime rule. It’s anyone’s guess how high the DOL may want to raise the salary level threshold for the white-collar exemptions to the rule, but it could be quite high, experts say.