I-9/E-Verify

By: Dave Fowler

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UPDATE: February 4, 2010

The Illinios Department of Labor has now posted the attestation form on their website at http://www.state.il.us/Agency/idol/forms/pdfs/attest.pdf. This new attestation form clarifies the requirements for employers utilizing an E-Verify Designated Agent.

IMPORTANT! The information in the new attestation form makes at least some of the information in the original blog post irrelevant.

Regarding the E-Verify Computer Based Training (CBT) requirement, the attestation form says the following:

Under penalty of perjury, I attest that:

(b) Employer submits employment eligibility verification queries (EEVQs) via a Department of Homeland Security-approved Designated Agent, pursuant to a Memorandum of Understanding (MOU) among Employer, the Designated Agent and DHS.

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Some of the information for this entry was taken from a blog entry posted January 11, 2010 by Ogletree Deakins, one of America's leading labor and employment law firms, at the Lexology website. The blog entry titled "New E-Verify law goes into effect" and covers the IL law.

Did you ever wonder if our elected officials and their staffs ever bothered to take the time to understand how something works or doesn't work or how things could be made better before they pass a law? In the case of the new Illinois law that imposes requirements on employers who use E-Verify and penalties on employers who violate the requirements, the answer is a resounding YES!

Keep in mind as you read this that when IL passed a law prohibiting its employers from using E-Verify, they were sued by the U.S. Department of Justice and the law went away.

The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify.

As of January 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment. Employers are required to attest to the following:

1. The employer and all its employees using E-Verify have received the E-Verify training materials and completed the online computer-based tutorial (CBT) training provided by the Department of Homeland Security (DHS).
2. The employer has posted the required notice from DHS indicating that the company is enrolled in E-Verify in a place that is clearly visible.
3. The employer maintains the original signed attestation form, as well as all CBT certificates of completion and makes them available for copying and inspection at the request of the Illinois Department of Labor.
4. The employer has posted the required anti-discrimination notice issued by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices (OSC) in a place that is clearly visible. Employers already enrolled in E-Verify must sign the attestation before January 30, 2010.

This sounds easy enough, right? Posting the notices are already required by the E-Verify MOU (Memorandum of Understanding) that the employer signs to enroll in E-Verify. However, compliance with the other two requirements is more difficult and burdensome for the employer.

1. The CBT training is only available to employers who use the E-Verify website. DHS does NOT make the training available to employers who use an E-Verify Service Provider (i.e., Designated Agent or DA) to submit E-Verify queries for them. Therefore, employers who use a DA will have trouble completing the CBT. DHS is working on a ppt deck for employers using a DA, but there are no plans to make the CBT available. So, the only way an employer using a DA can comply with the CBT requirement is to enroll to use the E-Verify website, take the training, and then not use the E-Verify website for submitting E-Verify queries. This is not a good solution for anyone.
2. The employer can maintain the signed attestation form, but DHS does not really providee a 'Certificate of Completion' for the CBT. The only thing provided is a web page at the end of the training that says you passed and gives your score. So, this is just more paper an employer needs to retain for an audit that may never come unless IL is really going to spend the money to audit employers operating in the state.

So, how is an IL employer who uses a DA's electronic I-9/E-Verify service supposed to comply with the IL law since DHS does not make and has no plans to make the CBT available to these employers?

1. Signup to use the E-Verify site and have your IL employees signing I-9s complete the CBT and print the completion page. Then only use the DA's I-9/E-Verify system to complete I-9s and E-Verify cases.
2. Use a tool like Live Meeting and show your IL users the CBT, have them write down the answers, score the answers, and print out completion pages for those that pass and write their name on it.
3. Screen capture the CBT, create a ppt, and require the test to be given and scored locally. Keep a printout of the completion page for those that pass.
4. Finallly, you can opt to take the position that the requirement only applies to users who are actually using the E-Verify system (i.e., website) and that the law does not apply to users accessing E-Verify through a DA's third-party system.

THE ABOVE DO NOT REPRESENT RECOMMENDATIONS FROM TALX OR EVEN OPTIONS THAT MAKE SENSE FOR EMPLOYERS SINCE THEY MAY CAUSE MORE PROBLEMS THAN THEY SOLVE. EMPLOYERS MUST MAKE THEIR OWN DECISIONS ON WHAT TO DO REGARDING THE IL LAW.

The new law also prohibits employers that are enrolled in E-Verify from:

1. Failing to display the notices supplied by DHS and OSC in a place clearly visible to both prospective and current employees.
2. Allowing an employee to use the E-Verify system prior to having completed the CBT training.
3. Allowing employees that have not taken the CBT training to use the E-Verify program under an employee's user identification or password that has taken the training.
4. Using the E-Verify program as a pre-screening mechanism for prospective employees.
5. Terminating an employee prior to that employee receiving a final non-confirmation notice from the Social Security Administration or DHS.
6. Failing to notify the employee, in writing, of the employer’s receipt of a tentative nonconfirmation notice and of the employee’s right to contest that tentative non-confirmation letter.
7. Failing to safeguard the information contained in the E-Verify program database.

These are all prohibitions that are already prohibited by the federal E-Verify laws and regulations so what's the point?

The law also prohibits an individual from falsely posing as an employer to enroll in E-Verify, and prohibits an employer from using E-Verify to access information regarding someone who is not an employee of the employer. This is a good thing. As I've pointed out before, DHS needs to have a credentialing process for employers and DAs to make sure employers are legitimate and DAs are qualified to serve as an agent for DHS and E-Verify.

Employees and applicants now have a private right of action based on an employer's violation of the Act. Here is an example of a state promoting unnecessary lawsuits. DHS already provides for an employee to contact the U.S. Department of Justice, Office of Special Council if they feel their rights have been violated by the employer. Under the IL law if an employee or applicant believes the Act has been violated they must:

1. File a complaint with the Illinois Department of Labor.
2. Under certain conditions, file a lawsuit in state court.
3. The court may award $500 plus costs, attorney's fees, and actual damages.
4. If the employer doesn't pay the employer can be held in contempt and=, found guilty of a petty offense, which carries a maximum penalty of $1,000.

The IL Department of Human Rights has been granted the power to investigate such claims under the IL Human Rights Act when an employee or applicant believes that the employer refused to hire the applicant or to promote, renew employment, or discharged, or disciplined the employee without following E-Verify procedures.

Visit the IL Department of Labor website for more information on the law.

A more cynical writer or reader might twist this new IL law into some kind of attempt by IL to 'get even' for being sued by the USDOJ for trying to prohibit the use of E-Verify? But, as everyone knows our elected officials would never do that. That would be a waste of the people's time, money, and resources. Our elected officials are there to protect us from those that would do us harm. They would never engage in playground politics like this. Would they?

HR Service Matters

By: Mike Smith

At this time of year there is a lot of discussion of the coming trends in 2010.  And, a lot of the smart people look to the recent past to help get a grip on what is coming.  There is a marketing resource that I have used for many years that always seems to offer solid scrutiny of a variety of marketing topics.  MarketingProfs is a resource website http://www.marketingprofs.com that is comprised of a self-described talented and somewhat eccentric team.  I have found them to put forward some very ingenious ideas and views about trendy marketing practices.

So what is the connection with HR Services?  Well a big part of effective delivery of HR Services should be thoughtful consideration of marketing the services.  It is so important to habitually consider how to effectively market powerful HR Services to our employees.  As you consider your HR Services in 2010 and how you market your offerings, consider what MarketingProfs reported (see their full report on their website) as their most-viewed, most-read and most-downloaded content in 2009.

1) What will we do with social media?  Marketers seem to be all over this media tool and it has moved into mainstream marketing.  Has your HR team figured out how to use social media effectively?

2) How can we do more with less?  Search out tips from a variety of resources on how to market for less and even look at classical guerilla marketing principles for low cost ideas.

3) Two Words: Digital Marketing. Taking the time to explore popular digital marketing concepts could lead you to some actionable ideas for your workplace portal.

And, as you consider deploying and marketing some of your HR Services through the workplace portal, consider some great reminders and fresh thinking from a recent post at Jason Averbook’s blog.

http://www.knowledgeinfusion.com/coe/blogs/infuser/2010/01/08/who-owns-the-workforce-portal-and-who-is-the-biggest-loser

I-9/E-Verify

By: Dave Fowler

Updates: July 6, 2010 - from comments submitted to the blog post.

1. USCIS has issued guidelines for the hire date to be entered on the Form I-9 as well as in E-Verify and these dates can be different.
2. Question:
1. Does the employee signature date in Section 1 have to match the hire date in Section 2?
2. Answer: The employee signature date in Section one should be the same or prior to the hire date in Section 2 unless you are completing a new Form I-9 for an existing employee because the original Form I-9 was lost or damaged, or if a Form I-9 was not completed for the employee at the time of hire.
3. Question:
1. Can the certification date be a later date than the employee's signature date in Section 1?
2. Answer: Yes. This happens frequently because the Form I-9 can be completed prior to the employee's first day of work for pay. If the employee is being hired today and completing the Form I-9, but won't start working until next week, the employee signs Section 1 today and, as many employers do, the hire date will be the date the employee starts work next week.

I have it on good authority that after much discussion at USCIS around the employment and rehire dates on the Form I-9, USCIS has formulated new guidance that will be published in updated documentation due out in a few months. The guidance is consistent with the postion that has been taken by TALX, other E-Verify Designated Agents, professional associations such as the American Payroll Association, and other government agencies. This is good news since this guidance will put the issue to rest and provide employers, E-Verify Designated Agents, and auditors with definitive rules around correctly entering hire dates on Form I-9.

The guidance will essentially include the following.

• The employment date in Section 2 must be the date the employer signs Section 2 or a prior date.
• The employment date in Section 2 must not be a future date. A future date is not acceptable by E-Verify.
• The rehire date in Section 3 must be the date the employer signs Section 3 or a prior date. The rehire date in Section 3 must not be a future date.
• There is no requirement that the employment date in Section 2 or the rehire date in Section 3 match any date in the employer's systems. Since the Form I-9 can be completed prior to the employee's first day of work for pay, the employment date in Section 2 (or rehire date in Section 3) of the Form I-9 may be a date prior to the employee's first day of work for pay and it may be a date prior to the date the employee qualifies for benefits from the employer.

This is a very good thing. Thank you USCIS for stepping up and providing this guidance. Having this documented will clarify the employment date rule or all stakeholders. Hopefully, USCIS will continue to provide updated guidance to clarify other rules regarding Form I-9. Anyway, for now kudos to USCIS. We all appreciate your efforts and can't wait for the updated documentation to be published.

HR Service Matters

By: Mike Smith

One of the hottest areas associated with HR Services is talent management.  I say “associated with” because talent management must reach out directly to employees for feedback (for likes of reviews and self-evaluations) and up-to-date employee profiles to be effective.  I say “hottest” because there are numerous software and SaaS alternatives (40+ providers) to choose from and the market is still growing.  Both Gartner (Magic Quadrant for E-Recruitment Software) and Bersin Associates (Talent Management Systems Customer Satisfaction 2010 report) have produced reports in December 2009 so there are plenty of current technical and practical opinions to review.

In looking at the Josh Bersin blog which has an overview of the Bersin Satisfaction Survey, I noticed that while the functionality of the alternative solutions is high, the overall satisfaction level is low.  The link to the summary is below:

http://www.bersin.com/Blog/post/2010-Talent-Management-Systems-Satisfaction-Results.aspx

The survey reports that buyers like the features, but struggle with the implementation and integration with other related systems.  As we consider the overall delivery of HR services within our own organizations, I wonder if our employees also struggle.  Could it be that the portals we provide employees to access our HR services are not well integrated with the underlying HR systems?  Maybe we should survey employees regularly about their satisfaction level with HR services.

Charge statements represent the states accounting of benefits paid to former employees and confirm the amount that has been charged to an employer’s unemployment account. They are sent to the employer on a monthly, quarterly or annual basis, depending on the state.  The employer then has the opportunity to dispute charges to its account within a specified time period.   

Believe it or not, the state can make mistakes like anyone else. An essential part of any employer’s unemployment cost management program should include a process for checking and verifying benefit charges.  A few common mistakes to look for include:

• A hearing decision reversing a determination previously in the claimant’s favor is received and the state does not issue credits due;
• Benefits are paid that should have been charged to a predecessor’s or successor’s account;
• The state has issued duplicate charges;
• Previous charges were protested and credits are due but the employer continues to be charged;
• The individual is working for the employer and has earnings during the same period for which benefits were paid.

Tammy Mullin

I-9/E-Verify

By: Dave Fowler

A recent Minnesota Public Radio (MPR) news story regarding a security breach at an E-Verify Designated Agent's (DA) website highlights the need for the Department of Homeland Security (DHS) to credential all E-Verify DAs. Such credentialing must confirm, among other things, that the DA is a real company, has security practices and technology in place to prevent unauthorized access to personal data, and delivers software and services that comply with the requirements of E-Verify. The story points out that there are more than 13,000 E-Verify DAs registered with DHS.

In addition to the MPR story, there are a number of other employers that could share their stories of security and compliance issues encountered with E-Verify DAs, their software, and services. Since these stories reflect poorly on E-Verify and those DAs providing secure and compliant services, it is up to the DAs to pressure DHS for a comprehensive DA credentialing program.

DHS is working on a credentialing program to verify that companies enrolling in E-Verify are legitimate. However, there needs to be a more rigorous process for DAs since they provide access to E-Verify for multiple employers. Now is the time for DHS to establish a DA credentialing program before E-Verify becomes required for the roughly 50 million employees hired annually in the United States by over 6 million employers.

Employers currently using or considering an electronic I-9/E-Verify service as well as performing E-Verify queries with a DA should carefully evaluate the security practices, procedures, and safeguards of the DA. At a minimum, DAs should be required to complete a security audit for the employer, provide privacy and security statements on their websites, and maintain a SAS 70 Type II certification. Employers should think long and hard about security before deciding to use or continue to use a DA that does not at least meet these minimum requirements or does not comply with the employer's corporate security standards.

NEW INFORMATION POST - December 14, 2009

The subject of the MPR report referred to above has responded by posting information on their website. There is also a follow-up story published on The Minnesota Independent website.

NEW INFORMATION POST - December 15, 2009

The subject of the MPR report filed suit against The State of Minnesota on December 10, 2009, but did not inform The State of Minnesota at the time the lawsuit was filed.

Word has spread and more stories and opinions are being posted such as:

http://maryturck.wordpress.com/2009/12/15/texas-firm-screwed-up-so-it-sues-minnesota/

http://www.zecurion.com/server-software-blog/2009/12/minnesota-employee-data-exposed-by-lookout-services/

http://www.secretsofthecity.com/mnspeak/how-dare-a-journalist-use-website-data

http://www.databreaches.net/?p=8844

http://www.databreaches.net/?p=8855

NEW INFORMATION POST - December 17, 2009

The saga continues. It is interesting that there are 13,649 E-Verify Designated Agents (DAs) and not one of them has been credentialed by DHS. As the number of DAs grows without any DHS credentialing process so does the potential that employee data will be compromised.

http://www.chron.com/disp/story.mpl/business/6774164.html

NEW INFORMATION POST - December 18, 2009

Others in Minnesota continue to weigh in on the importance of making sure an E-Verify Designated Agent has sufficient security safeguards in place to protect employee data. Minnesota State Legislative Auditor Jim Nobles raised 'significant concerns' in a June report about an E-Verify Designated Agent's ability to protect employee data. The company won the contract and now Nobles wants to determine if Minnesota officials were satisfied that the company had addressed those issues before the state signed a deal with the company in July. He also wants to know if state officials adequately responded in October to complaints that employee information -- including names, dates of birth and Social Security numbers -- was still at risk. The full text of the article that was the source of the information above can be found at:

http://minnesota.publicradio.org/display/web/2009/12/17/lookout-folo/

It seems employers would benefit greatly if DHS would credential every E-Verify Designated Agent (DA) to make sure security and privacy are properly addressed before certifying a company as an E-Verify Designated Agent. DHS should also publish the list of certified DAs on the DHS website.

I took some time off over the Thanksgiving holidays as I hope a lot of you were able to do but of course have been digging out over the last week.  Isn't that how it always goes?  So, I apologize for being neglectful with the blog recently. 

Did you know that all states provide for the payment of unemployment benefits when underemployment reaches a certain level. In most states, a worker is partially unemployed during a week of less than full-time work if earnings from the regular employer (or odd-job earnings) are less than the weekly benefit amount (WBA).

Most states use the individual’s earnings to determine partial benefits and not the number of hours worked in a given week. Individuals may be found eligible for benefits in all states due to reduced hours or temporary layoffs of even just a couple days.

How Do States Determine Eligibility for Partial Unemployment?

Well, each state has a specific method of determining eligibility for Partial Unemployment. The calculations are typically based on the individual’s earnings, state-specific disregarded earnings, and the individual’s calculated WBA. The disregarded earnings are established by each state and may be a specific dollar amount, a portion of the individual’s earnings, or a portion of the individual’s WBA which gets disregarded from their actual income for that week.

The amount of benefits for a week of partial unemployment is usually the WBA less wages earned, after the earnings disregard.

Example:

In the state of Maryland the earnings disregarded in computing partial week benefits is $100. This means if an individual has an established WBA of $300, and they earn $275 during a partial week, the state will disregard the first $100 of their earnings. This leaves $175 of recognized income for that week. This $175 will be reduced from the WBA, leaving total a total benefit payment of $125.  

If you have employees collecting partial unemployment benefits, you can expect your state to request earnings information more frequently.  You also want to make sure you are checking your charge statements carefully to ensure you are not being charged the full WBA.

If you are interested in getting information specific to the states in which you do business, contact Sheila Gramann at sheila.gramann@talx.com or give her a call at (314) 214-7387.  Tell her you got her name off of Tammy's blog and she'll be happy to help.

Tammy Mullin

HR Service Matters: By: Mike Smith

The employee portal is the doorway to today’s HR services.  Most organizations have at least a first generation employee portal and many others have introduced (or they are well on their way) a second generation portal.  So, how do you show off what you have done to make your employee portal look easy and exciting to use?

That question made me think about the ways that employees and the management team learn about the variety of HR services available at their fingertips.  Let me challenge you to think creatively about how you show off what your team has done.  Making a big impression about ease-of-use and depth of services accessible is important if you want to increase adoption rates.  Also, having an astounding impact can be a big boon to the viral marketing of dazzling new capabilities.

I thought about the legendary product Shootouts that Bill Kutik has made famous at the HR Technology Conference.  There is a lot that HR service teams can learn from these Shootouts.  Reflecting on these demos reminds me that while demo skill is important, other tools can make a big difference in perception.  For example, in translating this perception goal to portals, consider taking the time to build a “movie” that shows off key features.  A simple video can help you drive excitement and hype about portal enhancements.

Looking over the reviews of the fall 2009 HR Technology Shootout reinforces the value of highlighting what you want your audience to see and engage.  Ron Hanscome’s blog (link below) shows some real insight into the power of a good demo.

http://tinyurl.com/ygb3m76

All of this makes you want to have a good repeatable demo that is engaging to watch.  Enhancing your demos might be a great place to start as you ready new HR service features.  And, next year when you attend the HR Technology Conference Shootout, consider viewing the alluring demos as a way to learn new ways to show off your own employee services.

I-9/E-Verify

By: Dave Fowler

ICE, the Immigration and Customs Enforcement division of DHS, has replaced raids with worksite enforcement actions. Instead of barging in on a work location, disrupting operations, validating work authorizations, and arresting illegal workers, ICE is now becoming more methodical by stepping up worksite enforcement audits. These audits are for the most part 'under the radar' as far as illegal workers are concerned. Auditors contact the employer and provide 72 hours notice before coming onsite and inspecting the employers Forms I-9s. Based on the results of the audit, any illegal workers are processed and the employer faces potential fines and other actions. In addition, ICE is likely to return and audit the employer again to make sure any corrective action has been taken.

In addition to the information below, ICE issued additional Notices of Inspection (NOIs) during Q4 2009 to 1,000 employers across the country associated with critical infrastructure or key resources. These NOIs let business owners know that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. Results of these NOIs should be made available on the ICE website sometime in 2010.

The following information is from the ICE website at: http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE's major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.

Statistics since implementation of new ICE worksite enforcement strategy on April 30:

• 45 businesses and 47 individuals debarred;
  • 0 businesses and 1 individual were debarred during same period in FY 2008.
• 142 Notices of Intent to Fine (NIF) totaling $15,865,181;
  • ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.
• 45 Final Orders totaling $798,179;
  • ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.
• 1,897 cases initiated;
  • ICE initiated 605 cases during the same period in FY 2008.
• 1,069 Form I-9 Inspections;
  • ICE initiated 503 Form I-9 Inspections in all of FY 2008.

In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE's effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:

• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.
• To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

For more information, visit http://www.ice.gov/.