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1. Forms Forms Forms! Title Goes Here Presented By: Heidi Doescher and Stephen Parker

2. Overview • Forms • Background Checks and Credit Report • Social Media Update • Pre-Employment Inquiries

3. Forms – the Standbys

4. Forms – the Standbys • W-4 • Direct Deposit form with voided check • Personal Information • Emergency Contact

5. Forms You Might Want To Include • Acknowledgements • At-will employment • Discrimination and Harassment Reporting Mechanisms • Receipt of Employee Handbook • Job Description • ADA • FLSA

6. Purpose of the I-9 Form The purpose of the I-9 Form is to verify an employee’s: Identity Authorization to work in the United States All new employees hired on/after November 6, 1986 must complete a Form I-9. Federal law provides for civil and criminal penalties for failure to comply with Form I-9 requirements

8. Section 1: Employee Information and Verification Section 1 of the I-9 form is to be completed on the first day of work. Earlier is acceptable, but the form cannot be completed before the employee has been hired. Provide employee with Form I-9 (including instructions). Ask him/her to complete Section 1 and bring an acceptable combination of documents to you no later than their third work day. Let the employee choose the documents! Never request specific documents. The Office of Special Counsel for Immigration-Related Unfair Employment Practices enforces the anti-discrimination provision of the Immigration and Nationality Act § 274B, 8 U.S.C. § 1324b. This statute prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual's national origin or citizenship status. The statute also prohibits discrimination during the employment eligibility verification (Form I-9 and E-Verify) process (document abuse), and retaliation or intimidation

9. Section 1: Employee Information and Verification Check that the employee has completed all fields: Name: The employee must use his/her legal name in correct order. Address, Date of Birth, Social Security Number. Citizenship Attestation A Lawful Permanent Resident must provide an 8- or 9-digit Alien Number. An Alien Authorized to Work must provide the date work authorization expires and an Alien number or an 11-digit Admission number from the Form I-94. Sign and Date: The form is not valid without a signature. Preparer and/or Translator Certification: If someone other than the employee completed Section 1.

10. Section 2: Employer Review and Verification To be completed no later than the employee’s third workday by an authorized representative of the employer. Valid documentation is one of the following: One document from List A, or one from List B and one from List C Be sure the employee has signed the documents. Make a readable copy of each document presented.

11. Section 2: Can I accept this document? Must be original, not faxed/photocopied Signed Unexpired “Reasonably appears, upon reasonable inspection of its features and the information it contains, to be genuine and to relate to the employee.” -- DHS Guidance.

12. Section 2: Employer Review and Verification Record each Document title, Issuing authority, Document number, and Expiration date (if applicable). Use the correct lines according to the key at the far left of the page. Use the correct column for List A, B, or C. Enter the employment start date (month/day/year). Certification Only the person who viewed the original documents can complete this section. Signature, Printed Name, Title Name and Address of the employer.

13. Section 3: Updating and Re-verification Only use this section when the employee’s work authorization has changed or has a new expiration date. For example when there is an extension of an Employment Authorization Card Never re-verify a U.S. Citizen or Lawful Permanent Residence.

14. Retention of I-9 Form Retain I-9 for: Three years from the date of hire; OR One year from the date of termination, Whichever of the two dates is later All current employees should have I-9s on file

15. Best Employment Practices (Outlined by ICE): http://www.ice.gov/image/best-practice.htm Use E-Verify for all new hires. Use the Social Security Number Verification Service (SSNVS) for wage reporting.  Establish a written I-9 Compliance Policy. Establish an internal compliance and training programs. Allow only trained personnel to complete I-9 process, along with secondary review. Perform annual internal I-9 audits.

16. Best Employment Practices (cont’d) Ensure contractors establish procedures to comply with law. Establish a protocol for responding to government agencies that raise possible problems (e.g., SSA No-Match Letters, Returned W-2 forms, Payroll Companies, etc.) Establish tip line and response mechanism (inbox, email, etc.) to report activity relating to illegal workers. Implement policies to protect against discrimination or document abuse. Maintain clear copies of verification documents.

17. A New I-9 Form?? USCIS has proposed a new I-9 form Doubles the length of the form from one to two pages so with instructions, totals nine(!) pages. Includes optional employee Phone Number and Email address fields It has been proposed by CBP that the I-94 will become automated and paperless. It is unclear how the employer will complete the I-9 form when the I-94 becomes paperless Hopefully revision and clarification will come soon.

18. Electronic I-9? On August 23, 2010, regulations were amended to allow employers to complete and store electronically generated I-9 Forms. Requires a software product and internal business practices and protocols related to the generation of, use of, storage of, security of, and inspection and quality assurance programs

19. I-9 Form Resources Handbook for Employers provides USCIS guidance on I-9 form completion. http://www.uscis.gov/files/form/m-274.pdf The statute, INA §274A, and the regulations at 8 CFR §274a are the controlling authority over the I-9 process Questions / Discussion?

20. Colorado Affirmation Form – UPDATED September 6, 2012 • Part of the Colorado Employment Verification Law, C.R.S. 8-2-122 • Applies to all public and private employers in Colorado • In ADDITION to the I-9 • Requirements (to be completed by the employer within 20 days of hiring): • Completion of the Affirmation Form • Make and retain copies of employee identity and employment eligibility documentation • Must retain for entire duration of employment

21. Colorado Affirmation Form What exactly is the employer affirming? • Employer has examined the legal work status of the new employee • Employer has retained file copies of the I-9 identify verification forms • Employer has not altered or falsified these documents • Employer has not knowingly hired an illegal alien

22. Colorado Affirmation Form

23. Forms to Prevent Deadbeat Parents • Under federal law, employers are required to report new hires to Colorado’s State Directory of New Hires - https://newhire.state.co.us/newhire/do/ • National directory of new hires that is used to locate parents with child support obligations • 20 calendar days after hire or by next regularly scheduled payday • If reporting electronically, employer must report twice per month

24. Forms to Prevent Deadbeat Parents • Required information: • Employee’s name, address, SSN, date of hire (first day services performed), birthdate (optional) • Employer’s name, payroll address, FEIN • How to report • Online through website • Fax or mail W-4 or multi-state form • “Diskette, Magnetic Media or Cartridge”

25. Forms to Prevent Deadbeat Parents • Options for multi-state employers: • Provide form to state where new employee works, OR • Designate one state and transmit ALL new hire reports to that state • Requires notification to Department of Health and Human Services

26. Forms to Prevent Deadbeat Parents

27. To Screen or Not to Screen • Pros • Save time and money by making sure that new employees: • Are qualified • Have good work habits • Are not likely to cause conflicts or injuries • Goal is to minimize employer liability

28. To Screen or Not to Screen • BUT – some types of inquiries are considered unlawful • Too intrusive • May have negative impact on people with protected characteristics

29. To Screen or Not to Screen • Laws that may be implicated during hiring process: • Title VII – race, color, religion, sex, national origin • ADEA – age • ADA – disability • CADA – disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry • Colorado statutes – marriage to another employee (for employers w/ more than 25 employees)

30. To Screen or Not to Screen • Offer first, verify later!!! • If you need to do a credit check, verification of a driving record, or other type of screening that may have a disparate impact on people with protected characteristics, it is better to make a conditional offer of employment rather than withholding any offer until verification is completed.

31. Background Checks • In Colorado, employers may not require applicants to pay for the cost of: • Background checks • Medical examinations • Never ask for photos prior to hiring

32. Fair Credit Reporting Act • Federal law that applies to reports prepared by a third party that regularly assembles or evaluates information bearing on an individual’s credit, character, and reputation • Covers consumer reports such as credit reports, criminal background reports, driving records, and investigative consumer reports • Can cover social media checks if they are done through a vendor (Social Intelligence Corporation)

33. Fair Credit Reporting Act • Does the FCRA apply to me? • Only applies to third party reports from consumer reporting agencies, • If you do an in-house investigation (ex: calling references, googling employees), it is not covered by FCRA • Does not cover reports from government agencies

34. Fair Credit Reporting Act Requirements – Initial Disclosure and Written Authorization • Employer must make a clear and conspicuous written disclosure to the consumer that a report may be obtained • Note that the report may be used for employment purposes • Can also seek consent to run future checks for post-hiring decisions • Disclosure must be made in a separate document from the employment application • Obtain the consumer’s prior written authorization (can be on same page as disclosure) • Obtain name, address, SSN, driver’s license number, and signature

35. Fair Credit Reporting Act Requirements – Certification to the Consumer Reporting Agency • Certify to the consumer reporting agency that you satisfied the disclosure/authorization requirement, that you will comply with the Act’s requirements if it makes an adverse employment decision, and that the employer will comply with the FCRA and will not violate state and federal discrimination laws or regulations in its use of the credit report

36. Fair Credit Reporting Act Requirements – Pre-Adverse Action Disclosure • Before an employer takes an adverse action against an applicant or employee because of his or her credit report, employer is required to: • Notify the applicant that you are considering not hiring him or her because of information in credit report • Provide applicant with a copy of the report • Provide applicant with copy of the “Summary of Your Rights” form • Provide information about company that supplied the report and how to dispute the accuracy of the information • Provide statement that background company did not make the decision to take the adverse action

37. Fair Credit Reporting Act Requirements – Post-Adverse Action Disclosure • If employer takes adverse action because of an individual’s credit report, employer is required to: • Provide information about consumer reporting agency that supplied the report and how to dispute the accuracy of the information and obtain a free report • Provide statement that consumer reporting agency did not make the decision to take the adverse action

38. Fair Credit Reporting Act Employee Misconduct Exception • Certain FCRA requirements do not apply if an employer is investigating suspected misconduct related to employment or compliance with federal, state, or local laws or any written policies of the employer. • Employer does not have to obtain authorization, but does have to disclose some information after taking adverse action (summary of nature and substance of information)

39. Fair Credit Reporting Act New Forms go into effect January 1, 2013!!! • New “Summary of Your Rights” form must be provided • Change is due to transfer of responsibility for Act from Federal Trade Commission to the new Consumer Financial Protection Bureau • Provides new contact information

40. Fair Credit Reporting Act Things to consider before doing credit checks on applicants and employees • EEOC has said that employment credit checks have a disparate impact on racial minorities • Should only use a credit history check when such information is job related and consistent with business necessity (such as for jobs that involve handling money • Keep background investigation reports separate from personnel files

41. Background Checks – the latest from the EEOC! • On April 25, 2012, the EEOC issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII” • Reinforced the EEOC’s long-held position that criminal background information may have a disparate impact on individuals because of their race or national origin in violation of Title VII

42. Background Checks – the latest from the EEOC! • In order to avoid a disparate impact claim, employers should not ask about arrests • The EEOC takes the position that an exclusion based on arrest is never job-related or consistent with business necessity • Does not establish criminal conduct • Presumed innocent until proven guilty • Many arrests do not result in convictions • An arrest by itself may not be used to deny an employment opportunity

43. Background Checks – the latest from the EEOC! In order to avoid a disparate impact claim, employers should utilize a targeted screening process for criminal convictions and an opportunity for individualized assessment: • Step 1 – Notify individual that he or she has been screened out because of conviction • Step 2 – Give opportunity to demonstrate that exclusion should not be applied due to his or her particular circumstance • Step 3 – Consider whether new information warrants an exception and shows that policy as applied is not job related/consistent with business necessity

44. Background Checks – the latest from the EEOC! Factors that must be considered during the targeted screening process: • The nature and gravity of the offense • The time that has passed since the offense, conduct, and/or completion of the sentence, and • The nature of the job held or sought

45. Background Checks – the latest from the EEOC! Best Practices: • Eliminate policies that automatically exclude people from employment based on any criminal record • Train managers and hiring officials about Title VII’s prohibition on discrimination • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity

46. Background Checks – the latest from the EEOC! Best Practices: • Develop a narrowly tailored written policy for criminal background screening • Identify essential job requirements • Determine the specific offenses that may demonstrate unfitness for performing such jobs • Determine the duration of exclusions for criminal conduct • Record the justification for the policy • Note and keep a record of consultations and research considered in crafting the policy and procedures • Train managers about the policy • Keep information about criminal records confidential

47. Social Media Update Stored Communications Act • Makes it a federal offense for employer to access, without authorization or in excess of authorization, communications stored at a facility which provides an electronic communications service • In other words, no spying on password-protected

48. Social Media Update – Consent? • Pietrylo v. Hillstone Restaurant Group – no consent because of employee’s subjective fear of losing her job. • The employer was found liable on the SCA claim even though it had gained access through an authorized user. • Snyer v. Fantasy Interactive, Inc. • No consent to read conversations that occurred on Skype out of office, despite warning about monitoring communications.

49. Social Media Update – Invasion of Privacy Claims • Several court have held that an employer who accesses an employee’s social media profile without the employee’s consent may be liable for invasion of privacy. • Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 2012 WL 1949668 (D. NJ., May 30, 2012)(holding that the employee had a reasonable expectation in her Facebook profile, which her employer accessed by coercing a coworker who was Facebook friends with the employee) • Don’t ask coworkers to help you spy!

50. Social Media Update – Legislative Trends • Maryland, Illinois, and California prohibit employers from asking for log-in information for social media websites. • California has exception • Similar bills introduced in NY, MA, MI, MN, MO, NJ, OH, PA, SC, and WA • Also, two federal bills currently in committee: • Social Networking Online Protection Act – prohibits ERs from asking for passwords • Password Protection Act – criminal penalties for coercing access