I-9/E-Verify

By: Dave Fowler

 

Well, it's been a while since the last posting and many things have happened and continue to happen. Based on conversations with DHS and others in the industry, here are a few things to take into consideration regarding the FAR rule.

• Due to the number of comments and suggestions USCIS has received since issuing th E-Verify Supplemental Guide For Federal Contractors on September 8, 2009, USCIS will be issuing an updated version in the near future.
• USCIS also issued an updated E-Verify User Manual For Federal Contractors on September 8, 2009. It is anticipated that an updated version of this document will also be issued to correct errors such as missing sections and poor wording.
• USCIS announced this week on the E-Verify website that the Photo Matching Tool, designed to help prevent document fraud, will be made available to E-Verify Designated Agents (soon to be referred to as E-Verify Service Providers) by the end of the year. The tool is already available to employers using the E-Verify website. Designated Agents will likely have between 6 and 9 months to update their electronic I-9 services to use the new E-Verify web service interface including the Photo Matching Tool.
• There are two groups of existing employees that can be considered exempt from E-Verify for purposes of complying with the FAR rule. However, if you must treat all employees in a group the same to avoid potential discrimination. If you submit one employee with an HSPD-12 background check, then you must submit all employees in the group. These groups include:
  • Employees with an active confidential, secret, or top secret security clearance
  • Employees with credentials issued as a result of an HSPD-12 (Homeland Security Presidential Directive 12) background check.
• Any existing employee who has already been submitted to E-Verify may not be submitted again unless they have been rehired since last being submitted to E-Verify. If you have used E-Verify for any existing employees you should generate the User Audit Report from the E-Verify website. This gives you an Excel file of the employees already verified by E-Verify so you can avoid submitting them more than once.
• Be careful when deciding to verify all existing employees or only those assigned to a FAR contract. Once you make this decision you can't change it.
• Employers have the ability to consider the legal entity that signed the contract as the contractor and bound by the FAR rule. NOTE: Consult your legal counsel to determine if certain subidiaries and affiliates are part of the legal contracting entity.
• Finally, based on feedback from many employers, industry organizations, and off-the-record discussions with DHS the best practice for verifying existing employees is to submit ALL existing employees to E-Verify by creating a new I-9 for each existing employee. For many employers verifying all existing employees is the lesser of two evils. NOTE: You must retain the employee's original I-9. Here are some reasons why verifying all existing employees is being considered the best practice.
  • This is a one-time event. If you decide to only verify employees working on a FAR contract, then you have an ongoing, never ending obligation to continue to verify existing employees transferred to an existing FAR contract or assigned to a new FAR contract.
  • Once you are finished you will only need to verify all new hires.
  • You have one process used uniformly across the entire organization.
  • You will have to complete new I-9s for at least some of your employees. This is because an I-9 must comply with E-Verify. Since a new I-9 was issued April 3, 2009 that now includes 4 citizenship options in Section 1 and no longer allows expired documents to be used to complete Section 2, all of your existing I-9s will not comply with E-Verify. By completing new I-9s for all existing employees you avoid having to manually audit your I-9s to determine which ones comply with E-Verify and which ones don't. For those that don't comply, you will have to complete a new I-9 anyway. Since most of your existing employees were probably hired prior to April 3, 2009, you will have to complete new I-9s for most of your employee anyway.

In closing, compliance with the FAR rule is causing employers to really consider moving to an electronic I-9 with E-Verify. This will reduce the hassle, eliminate errors with real-time error checking, promote your GREEN initiatives, automatically receive notifications for employees with expiring work authorizations (reverifications), reduce liability by automatically purging old I-9s for terminated employees once the I-9s have satisfied Federal retention requirements, and provide enhanced compliance reporting.

NOTE: For TALX clients already using The Work Number employment verification service from TALX, we already have the data we need for I-9 compliance reporting.

Well, we issued our press release for TALX Reemployment Services last week and we couldn't be more pleased with the interest and feedback for the new offering.  Employers truly see this as an opportunity to provide a real service to their exiting employees and to their communities.

I promised some more information about what this new service is all about so here goes.  Programs include but are not limited to the following;

• One-on-one job coaching to keep the job seeker motivated, confident, connected and educated in their job search
• Program designed to keep them on-track and engaged
• Create a strategy plan for reaching "hidden" jobs
• Identify transferable skills
• Keep the job seeker focused on their next job rather than their last job
• Access to proprietary eLearning software allows the job seeker to manage their job search information and activites
• Aggregated access to job board posts
• Resume building focused on accomplishments
• Online seminars & training
• "Virtual Job Club"

We use proven techniques to give job seekers the skills and confidence they need to find a job quickly and training on how to be successful in their new positions.   And, the best part for employers is that they get to do the right thing with a service that pays for itself in unemployment and other cost savings.

Tammy Mullin

Recently, I attended the HR Policy Association meeting in Washington D.C.  Whenever you visit D.C., I have found there is always an energy that permeates the air.  However, this time in D.C. the energy was tarnished by a sense of uncertainty.  The health care discussions are still at peak frenzy and other key issues loom large led by the Employee Free Choice Act.  Uncertain times for sure.

 

The change that is coming is not the same type of change we have responded to in past years.  The coming change is more of the non-incremental and sudden variety that drastically alters the way things get done.  These changes will most likely have an impact on how HR services will be delivered also. 

 

In responding to the radical innovative technology changes, organizations often look at the leaders in their industry.  However, these imminent radical changes are much more pervasive and will shape a broad range of industries.  So, in considering the influence these changes will have on an organization’s HR service delivery, the far-sighted will cast a wider net and look beyond the familiar leaders in their industry.

 

Mike Smith                   

Well done Gov. Gibbons (Nev. governor recommends lower unemployment taxes)!  I've been asking myself how we can really expect employers to create jobs and quite frankly stay in business when their taxes continue to rise.  In an economy like this, business is way down.  Raising taxes really seems counter intuitive.  If we kick them while their down, they might just stay down.  Today's unemployed workforce can't afford for any more businesses to be closed or jobs lost.  I sincerely hope the panel sees the logic in your recommendations. 

Tammy Mullin

Well we released some great news this week about a new service offering called TALX Reemployment Services.  I have to say that this has been a passion for us for the last, well year really.  It was about a year ago when we sat down to think about what direction we wanted to take for the product line and asked ourselves whether there was a bigger picture that Unemployment Outsourcers were missing. 

For many years now unemployment cost control efforts have been focused on protestable claims, benefit charge auditing, verifying tax rates and looking for other tax reduction opportunities.  All important in controlling unemployment costs, but we all (employers and service providers alike) have been missing the boat. 

When you take a step back and think about what impacts the cost of unemployment the most, the answer is pretty simple isn't it?  It's the fact that people are unemployed.  So yes, making sure that employers are only charged for benefits that are their responsibility is important, but is it the most important thing?  

The longer a person remains on unemployment, the higher the cost to the employer.  Since the majority of people filing a claim for unemployment are eligible to collect that would mean focusing on helping to control the duration of a unemployment claim is as important if not more important than the traditional unemployment cost control model with the main focus being on protestable claims.

So we spent some time thinking about all of this and asked ourselves what we could do to help control the duration of an unemployment claim and help employers do what they want to do which is take care of their displaced workers.  Our solution is a service that let's employers do the right thing and pays for itself in unemployment cost savings. 

I can't tell you how thrilled we are to be working with the team at NextJob to deliver a service that could have a tremendous impact in the lives of displaced workers. 

More to come on actual product features, but for now I have to say that it feels great to be in the business of getting people back to work more quickly. 

Tammy Mullin

I'm off to Atlanta this morning to talk to some employers about environmental factors impacting their unemployment costs.  Unemployment is all over the news of course, so they see what is happening on a daily basis, but do we hear the whole story on the news?

We are looking at another extension of unemployment benefits.  This extension would be funded by extending for a year a federal unemployment tax on employers that has been in place for 30 years.  Even though past benefit extensions were funded by the Federal Government, not by employers, we are kidding ourselves if we don't think employers are impacted.  I can't even begin to tell you the amount of paperwork employers receive on individuals collecting unemployment benefits.

Some states send out weekly requests for information for the entire duration of the claim.  If the current legislation passes, we would be looking at some individuals receiving 92 weeks.  Other states send out 2 forms for each claimant, both asking for similar information. 

All that paper has to be processed and responded to by someone and whether an employer uses a 3rd party administrator like TALX or does it themselves the employer is impacted.  I'm not saying that the unemployed don't deserve help during these hard economic times; I'm just saying that it would have been nice to provide a solution that didn't bury employers in paperwork.  It takes them away from their core goals of growing their business and hopefully creating jobs.  

Tammy Mullin

At a time when employers are facing higher unemployment costs due to increased benefit payouts, forced expansion of benefits for states accepting stimulus money and interest charges for necessary federal loans to name of few, the North Carolina Bar Association has issued an opinion that if it becomes binding would require employers to contract with a licensed attorney in the state of North Carolina if they wish to have representation at an unemployment hearing.

This change in essence means that employers will have to either pay more to be represented at a hearing, or skip representation altogether.  Skipping representation altogether is a bad choice for employers.  The current average cost of an unemployment claim to the employer is running about $4,500 and eligibility rules vary by state.  Without an expert at the hearing with them, the employer runs a higher risk of losing a winning case simply due to lack of knowledge.

I'm not in any position to dispute whether the NC Bar Association's opinion is valid or not.  I haven't read it and don't know the facts of the case.  What I do know is that in today's economy, employers are struggling to stay afloat.  They really can't afford to have many more legislative changes that end up costing them dollars they could be using to expand their businesses and create jobs.

Tammy Mullin

 

 

Well, it’s been awhile. I didn’t realize quite how long until a member of my team sent me an article about corporate blogging as a gentle reminder and another one point blank said, “You haven’t written since July 6th.” The fact that he knew the exact date was certainly telling.

So, I thought I better come back with some really useful information. Anyone who has ever attended an unemployment hearing for their employer knows it is really a stressful situation. I know, because I actually attended one when I worked for another company. I was nervous about the process and didn’t quite know what to expect. Someone from HR was with me, but I’m not sure they really knew what to expect either. Facing my former employee and telling my side of the story was nerve racking.

Well, I thought it might be helpful to pass along some advice from our very own resident expert, Doug Johnson, Director of Appellate Services here at TALX and here’s what he said:

Don’t ignore instructions on the Hearing Notice

• Note the date, time and whether the hearing is in-person or on the phone
• Remember to put the appointment on your calendar
• Familiarize yourself with specific state instructions and protocol in your state
• Follow all instructions exactly or else you may be precluded from participating in the hearing

Don’t be late

• Sometimes claimants and employers wait for the hearing officer, but the hearing officer might not wait for you.
• Yes, it’s a double standard, but you don’t want to get off on the wrong foot with the person who is deciding your case.

Don’t attend without an eye-witness

• The best person to testify at an unemployment insurance hearing is one with personal, first-hand knowledge.
• Although an HR representative may be able to testify about company policies and procedures, if he or she is limited by information or documentation provided by others, then his or her testimony might be given little weight.

Don’t forget to bring pertinent documentation

• The saying, “if it isn’t documented, then it didn’t happen” is very true in the unemployment insurance arena. Written policies, procedures, acknowledgments and warnings are among critical documents that can help you prove your case.
• Again, read the instructions on the Notice of Hearing. If you fail to comply with instructions, your documents may not be admitted into evidence.
  • In telephone hearings you will probably be required to mail proposed exhibits to the hearing officer and to the claimant in advance of the hearing.
  • For in-person hearings, you will probably be required to bring additional or “give-away” copies with you.

Don’t be unprepared

• A hearing officer, who conducts many hearings on a tight schedule, can become irritated or impatient if the parties are not organized and prepared.
• It’s important to collect your thoughts in advance, to know the points you’d like to make and to anticipate questions that may be asked.
• If you are fumbling through papers or are slow in providing answers to basic questions, you will not leave a good impression.

Don’t approach the process with a cavalier attitude

• Although an unemployment hearing is not a trial or a court of law, it is a “quasi-judicial” process that has definite and defined consequences for both the claimant and the employer.
• Hearing officers appreciate a serious and professional attitude on the part of the witness. Joking around or being too familiar or casual is not the best way to behave.

Don’t leave your manners at home

• Be polite and respectful of the hearing officer and the claimant. Address them formally.
• Don’t be sarcastic or argumentative.
• Don’t chew gum, say “Yep” and “Nope”
• In short, behave like your Mother taught you! You want to present yourself as a professional, confident and articulate representative of your Company.

Don’t dodge questions

• One of the most important rules to follow at a hearing is to listen to the question asked by the hearing officer, focus on that question and then answer it directly, clearly and concisely.
• Don’t “beat around the bush,” you may leave the impression of being either unprepared, evasive or untruthful.
• Short and sweet answers are best. Answer “Yes” and “No” questions with just that. If a hearing officer wants more information, he/she will ask you a follow-up question.
• If you don’t know an answer, be honest, rather than making something up.

Don’t squander opportunities

• You will be allowed to ask questions of the claimant. This is a good opportunity to bring out additional relevant information that the hearing officer has not elicited. But, here’s a word of caution: don’t ask a question if you don’t know the answer—or if there’s a possibility that you won’t like the answer.
• Think twice about asking the claimant a “Why?” question. You may get more than you bargained for.
• If given the opportunity to make a closing or summary statement, be short and sweet; hit the high points of your case; offer resolution to any discrepancies or contradictions between your position and that of the claimant, and then stop talking.

I know this was longer than a traditional blog. Bordering on more of an article really, but Doug’s a smart guy and I wish I had this advice before my case. I would have skipped that failed attempt at a joke.

If anyone out there would like to share their advice based on their experiences, we’d love to hear it.

Tammy Mullin

 

This past April, we discussed the fact that 14 states were borrowing funds from the federal government in order to pay unemployment benefits. At the present time there are 18 states who have borrowed $13,576,707,278.17. The state of MN has repaid their outstanding loan, while the states of FL, ID and RI have recently had to borrow federal dollars to keep their trust funds solvent. Currently the federal unemployment fund has $4,950,229,197 in its coffers.

There are signs that things are starting to turn around. For example, In July, employers took 2,157 mass layoff actions involving 206,791 workers. The number of mass layoff events decreased by 606 and the number of initial claims decreased by 72,440 from the prior month. These seem to be positive signs.

However the true marker for the "bottom" in the unemployment area will be when monthly new claim filings drop to below 400,000 per month. Another positive indicator that employment has begun to stabilize will be when consumer spending starts to increase.

We will continue to monitor the economic indicators and report accordingly.

Good marketing begins with strong differentiation in the market. As highlighted in Jack Trout’s Differentiate or Die and proposed by Ted Levitt, a legendary figure in the field of marketing, “… you can differentiate anything.”   Both believed that “… differentiation is one of the most strategic and tactical activities in which companies must constantly engage.”  So, if we can really differentiate anything, how would you characterize how your employment brand is differentiated?  And importantly, what do your employees say makes working for your organization really different and supports the overall organizational brand?

 

Wouldn’t it be great if your employees could be telling others that working for your organization gives them the opportunity to do what they do extremely well and love to do every day?  That view of a job is the essence of employee engagement which many organizations are trying to embrace.  I believe many employees sense that level of satisfaction in their work on a regular basis.

 

HR Organizations can certainly help promote the employment brand, but their employee’s views are much more powerful.  Current and prospective employees will always put more trust in what employees are saying about their work and the employment brand experiences. This video provides a good overview of the importance of an effective employment brand.

 

http://www.youtube.com/watch?v=af052lbuYPU

 

Given the chance, employees will be glad to share their fervor with others.  As suggested in my June 17 blog, find a good way to capture and publish these personal messages of enthusiasm and your employment brand will come more alive to both current and future employees.  The more compelling your employment brand, the easier it will be to attract and engage employees.

 

Mike Smith