I-9/E-Verify

By: Dave Fowler

Due in part to the negative security experiences of the State of Minnesota has had with an E-Verify Designated Agent (DA), USCIS is taking steps to enhance the security of E-Verify. As part of the privacy initiative being taking by the U.S. Citizenship and Immigration Services (USCIS), you may find that which most of these steps are good, one of them can cause difficulties for employers who are federal contractors/subcontractors and E-Verify Designated Agents serving federal contractors/subcontractors.

Good News

As of June 2, 2010 E-Verify is using commercial data from Dun and Bradstreet (D&B) to:

1. Prevent duplicate registrations - identify an existing duplicate or similar registration for the employer in E-Verify.
2. Validate employer - if the employer data matches the D&B records allow the employer to register in E-Verify. If the employer data does not match, E-Verify personnel review and assess employer validity for registration.

This is good news because this updated registration process, as described in the DHS Privacy Impact Assessment (click USCIS) "will help ensure that only valid employers enroll in E-Verify thereby establishing a level of identity assurance of the employer and thus minimizing the changes of fradulent employers using E-Verify to confirm personal information for illegal purposes."

Bad News

The E-Verify User Audit Report, which can be exported as an Excel file, used to contain the full SSN of the employee that was submitted to E-Verify. This report was very helpful to a federal contractor using E-Verify (via the E-Verify web site or a DA) with a federal contract that includes the FAR E-Verify clause. This report could be used to determine which existing employees had been submitted to E-Verify and how each E-Verify case was closed. This information is very helpful because

1. The employer must submit some or all existing employees to E-Verify, and
2. Existing employees already verified by E-Verify should not be submitted to E-Verify more than once.

So, using the User Audit Report with the full SSN made it very easy to uniquely identify existing employees who were determined to be Employment Authorized by E-Verify as well as any existing employees with E-Verify cases that did not confirm authorization to work in the U.S. This way, employers could not submit authorized employees to E-Verify again and any existing employees not authorized by E-Verify could be submitted again and verified as employment authorized.

Since the report now only includes the last 4 of SSN, anyone using the report must now do more work to uniquely identify the employee related to each E-Verify case. This can be difficult because there is no long a single unique identifier for the employee. Users of the report must use a combination of variables to try and determine the unique identity of the employee which can be difficult due to things such as name changes (e.g., marriage and divorce), lack of complete data (e.g., date of birth), and employees with the same last 4 of SSN.

Therefore, your algorighm to link an employee to an E-Verify case should match the following fields to identify the employee:

1. Last 4 of SSN
2. Date of Birth
3. Last Name
4. First Name
5. Hire Date

There is additional information in the User Audit Report, but it is not typically readily available in the employer's HR/Payroll system to match to the employees. Based on the experience in Minnesota and E-Verify's desire to increase the security and privacy features of E-Verify, the SSN in the User Audit Report will continue to be masked to the last 4 digits. So, update your matching algorithms and be prepared to manually identify at least a few employees.

On November 20, 2009, President Obama signed Executive Order 13520. The purpose of this order is to reduce improper payments by intensifying efforts to eliminate payment error, waste, fraud, and abuse in the major programs administered by the Federal Government, while continuing to ensure that Federal programs serve and provide access to their intended beneficiaries. The order adopts a comprehensive set of policies, including transparency and public scrutiny of significant payment errors throughout the Federal Government.

States Emphasize Reducing Overpayment and Fraud: The Impact on Employers

All state unemployment agencies require complete details be provided at the initial level of the unemployment claim. States no longer tolerate insufficient details with the initial claim response, in part because of the focus on reducing unemployment overpayments to claimants and fraud. From the State’s perspective, the employer and claimant are the knowledgeable parties and should have the facts at hand; therefore, the state looks to the employer for professional and complete information on a separation. When an employer fails to provide complete supporting separation information the state must rely on the available information provided to them to make a determination of benefits. 

Penalties for Employers Supplying Late or Insufficient Information

Some states are applying monetary penalties and/or penalties that could remove an employer’s rights to pursue the claim further. In addition, some states are penalizing the employer for insufficient or inaccurate responses at the claim level. This climate is ever-changing and due to demands made to increase efficiencies and reduce costs, several states are anticipated to follow suit by the end of the calendar year.

Penalties should not be the only incentive to provide separation information up front. It is good business practice to provide all the separation information, details and documents with the initial claim response for a number of reasons including:

1.   Shortening or mitigating the appeals and hearings process, saving time and money for both the State and the employer.

2.   Building good rapport with the state and being a good steward of best practices. Having proper documentation readily available is good business practice for employers and the documentation may be needed in other areas than unemployment like Equal Employment Opportunity Commission (EEOC) matters.

States Require Detailed, Accurate Information to Make an Accurate Determination

Many states penalize the employer for insufficient responses. Sufficiency is defined as information that is timely, provides complete details, and includes supporting documentation. States will frequently indicate in their determination that the “protest of the claim was not timely” when they mean “sufficient” information was not received timely.

States will focus on the final incident that initiated the claimant’s separation and they need supporting documentation to understand the complete picture. Employers should supply copies of: written warnings, company policies, resignation letters, admission statements, and any other documents that support the reason for separation and substantiate “the burden of proof.” A reason for separation alone is not sufficient.

Information States Typically Require:

•      Dates of employment

•      Details and date of the final incident that caused the separation

•      Description of the events that led to the final incident

•      Documents that show:

§  Claimant knew his job was in jeopardy

§  Claimant received warnings and knew the consequences of further incidents

§  Proof the claimant’s actions were intentional (not beyond his/her control).

§  Resignation letter in the event of a voluntary termination

Three Penalties States Impose:

•      Loss of appeal rights

•      Loss of non-charge rights: In cases where the claimant is later ruled ineligible to receive unemployment benefits, employers lose their protection and can be charged for that unemployment claim.

•      Monetary penalties: This could include charging the employer’s account for overpayments made or assessing a flat monetary amount.

Tammy Mullin

A Reemployment Strategy is a proactive plan to help displaced workers find a new job quickly thereby reducing the duration of unemployment benefits paid to that individual. In addition to helping reduce unemployment costs, an effective Reemployment Strategy can also reduce the risk of employment litigation or worker’s compensation claims as well as have a positive impact on a company’s overall corporate image.

The reemployment opportunity really lies in the highly dynamic nature of the job market. In April 2010, there were 4.2 million new hires. In fact, the job market averages about 50 million new hires a year. To put things into perspective, annual hires as a percentage of total available jobs averages about 35%. This represents the churn in the marketplace brought about by a shifting in industries due to disruptive technologies and other demographic conditions.

A successful reemployment program should be designed to motivate, educate and connect job seekers to available jobs more quickly than they would be able to do on their own.

Job seekers face some key challenges in the marketplace today where there are six job seekers for every available job. They are actually de-motivated by the media’s lack of understanding of job opportunities and in a lot of cases just don’t know where to start. Job loss can also really shake a person’s confidence which can lead to discouragement, making it even more difficult for them to effectively search for a job.

Few job seekers ever receive job search training. Job search tools and techniques are constantly evolving and the average person searches for a new job only once every four years. Some of the folks in serious need have gone ten years or more since their last job search and might not have the necessary skills or technical savvy to navigate through today’s job search technology. Job seekers should be educated on how to write an effective accomplishments –focused resume, how to evaluate their own transferable skills and passions, how and where to market themselves and how to interview.

There is also an issue with making the right connections. Marketplace disruption has created a situation where job seekers are forced to search for new jobs in new industries that might not identically align with what they have done in the past. Our experience in working with job seekers has taught us that approximately 80% of the available jobs in the market are hidden, meaning that they aren’t showing up on job boards or on company websites. Job seekers need help making the connection to these available jobs.

Employers should provide opportunities for job seekers to connect with each other as well as other employers that may be hiring. Virtual job clubs and online forums or chat rooms are some great best practices to provide exiting employees with an opportunity to connect with each other and share successes and lessons learned during their job search. Employers that are closing facilities in certain areas could also consider hosting a job fair to connect their exiting employees to employers seeking qualified candidates.

A professional job coach can be instrumental in helping motivate a job seeker. Coaches are generally extremely caring individuals that job seekers will respond to because they feel that someone is on their side and believes in them. A good coach will establish constant contact with a job seeker with structured weekly calls and emails that build in accountability and have job seekers working through a structured program designed to have them reemployed within a specified time period.

Whether an employer chooses to outsource the development and management of a reemployment program to a company that has expertise in the area or provide selected services in house, developing a plan of action before a staff reduction takes place is an essential part of ensuring that employers minimize risk and maintain positive brand image during a difficult and unfortunate time.

Tammy Mullin

When my father-in-law was asked how things were going for him he would often answer the “same old sixteen.”   To him things were the same and were not changing.  Things were actually changing for him, but it just seemed the same to him.  All things were giving the appearance of being exactly as before.

Recently, I attended the Workforce HR Tech Week virtual conference and connected with several sessions.  The last session of the conference was of most interest to me because it highlighted the results of Towers-Watson’s 2010 HR Service Delivery Survey. If you want to experience this session or any other from the HR Tech Week program, you can follow the link below to access the archived event.  Please note that you will need to register to gain access to any of the sessions.

http://www.workforce.com/hrtechweek-ondemand

I must admit I experienced the “same old sixteen” feeling as I listened to the 2010 results.  Of the HR initiatives undertaken in the last 18 months 68% of the respondents indicated that “Reengineered Key HR Processes” was where they invested their time.  This area tied for first place as respondents reflected on what they had been doing over the last 18 months.

In my 25+ years of being engaged in HR service delivery, reengineering the important HR processes always seems to be near or at the top of the list and taking the most time.  This same old sixteen outcome is similar to the results of organizations wanting to move in recent years to web-enabled self-service and now web 2.0 capabilities.  I believe that this protracted effect of HR technology investments is still driven by top management’s real view of the value propositions presented.  The result; many organizations are never able to get it done.  Being successful means spending more time understanding the real value, really believing in it and then communicating the passion.  This approach makes the difference in moving beyond the “same old sixteen.”

I-9/E-Verify

By: Dave Fowler

Finding Form I-9 and E-Verify manuals on the U.S. Citizenship and Immigration Services (USCIS) used to be a little hit-and-miss. The best way to find the current version of such manuals was to us the search feature of the USCIS web site at www.uscis.gov. At the APA's GATF Immigration Subcommittee meeting held in D.C. in May, a suggestion was made to the Verification Division responsible for E-Verify that all manuals be posted on one page. It appears this suggestion has already been implemented and we should all than E-Verify for this. You can now find Form I-9 and E-Verify manuals on a single web page. That's the good news!

The not so good news is that USCIS has fallen short in providing specific requirements for determining the hire date, employment date, rehire date, or whatever term you use to refer to the date the employee began work on the Form I-9. Part of this has to do with there not being specific requirements in the Form I-9 law for determining what this date should. As you know, E-Verify will not accept a future date as the hire date. The issue here is that there is a law governing the Form I-9, but E-Verify is still a pilot program. It just doesn't look good for a pilot program to be defining requrirements for a law, does it? Therefore, USCIS has issued guidance on their web site re: What's the Hire Date. Unfortunately, the guidance misses the mark and makes no sense for either the Form I-9 or E-Verify.

You can create an E-Verify case for a new employee as soon as they have accepted an offer of employment and completed Form I-9. The Form I-9 law does not prohibit the hire date in Section 2 or the rehire date in Section 3 from being a future date. How a signer can attest to a future event is beyond me since there is no guarantee the employee will even show up much less actually start on the date entered on Form I-9. Anyway, even if you put a future hire date on the Form I-9 you can still create an E-Verify case for the employee as soon as Form I-9 is completed. This sets up an interesting situation since you must enter the hire date into E-Verify and E-Verify does not accept a hire date that is in the future. So, what do you do? Why you are instructed to lie to E-Verify, of couse. If the Form I-9 contains a hire date that is in the future, you should enter today's date as the hire date in E-Verify. If the employee's hire date is today or a date prior to today, enter the hire date on the Form I-9 in E-Verify.

Gee, what's the purpose of entering a date in E-Verify that is not on the Form I-9? USCIS claims it has to do with the three-day rule for E-Verify purposes. What do you think employers are really going to do if they realize that the Monitoring & Compliance group within the USCIS Verification Division is looking for E-Verify cases created by non-FAR (non-federal contractors) beyond the three-day period? Right, the employer is simply going to enter today's date as the hire date to avoid submitting the new hire to E-Verify after the three-day period. E-Verify won't know that the case was created late because E-Verify can't verify the hire date.

So, rather than clarifying what is an acceptable hire date and rehire date on Form I-9, USCIS has opted to create more confusion, ask employers to enter a date into E-Verify that is not on the Form I-9, and make it even more difficult for the Monitoring & Compliance group to identify employers who intentionally create E-Verify cases late or use E-Verify for pre-screening, which is prohibited.

Wouldn't it make more sense for USCIS to simply define the hire and rehire dates as the earlier of the employee's first day of work for pay or the date Section 2 (or Section 3) of the Form I-9 is signed?

The experienced and expert team from TALX speaks out to help employers manage their unemployment costs.  Here's what Julie Satory, one of our fantastic Unemployment Insurance Consultants has to say:

Temporary agencies can be at a disadvantage in contesting attendance issues because absences may not be reported directly or tracked by the agency.   As a rule with temporary assignments, the employee reports to an offsite location and often only reports their absences to the offsite supervisor. 

A little foresight can dramatically increase an agency's odds of winning an attendance protest that comes a few months after termination.  At the time the client offsite reaches out to the agency and requests termination, the agency should obtain as much documented information as possible about the absences and keep the information accessible for when an unemployment claim follows.

Whenever a claimant has been terminated for absenteeism, the state does not view it as misconduct unless the employer is able to show that the absences rose to the level of misconduct.  If a claimant has had just a few sporadic occurrences, it’s not likely that the state will disqualify the claimant for misconduct attendance.

At the time of termination, the agency should reach out to the client and obtain the following information:

1. Dates of absences for at least 3-6 months prior to termination.  Please also track the reasons the claimant called out each time and document whether the absences were reported.
2. Documentation of when the claimant was warned about the attendance.  Take note of verbal warnings and issue written warnings at counseling sessions.
3. Copy of attendance policy (For point system policies- the state will assess whether the policy was reasonable and that the claimant was made aware of the policy)
4. Documentation and specifics for the reason for final absence and whether it was reported correctly.

Documentation is crucial in contesting attendance issues.  Simply stating they were ended for absenteeism will not result in disqualification as the burden of proof falls on the employer.  The unfortunate reality of staffing agencies is that client offsite locations at times will not have tracked attendance occurrences.  Try to advise your customers to keep track of the attendance.  Also issue disciplinary warning when your clients advise there are attendance problems.  The states want to see that the claimant was made aware the job was in jeopardy prior to termination.

Finally, absences are not considered misconduct if they are considered unpreventable or with good cause (i.e.: court dates, funeral).  As a rule, the states place more importance and weight on the reason for the final absence and whether the claimant had good cause for this absence.

Julie Satory

Did you know that the timing of a staff reduction has a tremendous impact on the unemployment cost of the reduction.  In some cases, the additional benefits paid in the current year will force a company into the next higher tax bracket which, depending on the state and a company’s current tax rate, could end up costing more than what is being saved in payroll dollars as a result of the actual reduction. 

Tax teams and Human Resource departments need to work closely together to determine how decisions made related to a staff reduction will impact unemployment costs.  Tax rate projections should be prepared at each key decision point and with the final plan to show the overall expected impact.  While having to implement a staff reduction is a difficult decision to make, there is much that can be done to minimize the impact to both employer and exiting employee, at least from an unemployment perspective. 

Tammy Mullin 

Establishing a rehire policy and mechanism for determining rehire eligibility can help reduce not only UI benefit charges, but also keep employers from paying additional unemployment taxes on payroll dollars.  If an individual is rehired within the year a new wage base is not established.  Taxes are generally calculated on a state defined dollar amount of wages for the year regardless of whether there is a break in service for that individual.  Rehire programs also reduce other rehire costs such as recruiting and training.

Rehire programs can be extremely beneficial in industries such as retail, where turnover is high and staffing requirements fluctuate dramatically based on consumer demand.

So if you haven't considered your rehire policies as part your your unemployment cost management program, it might be time to start.

Tammy Mullin

Situation

When HB 2676 was enacted earlier this year, it gave employers a 90 day grace period for making their unemployment tax payments without accruing interest for the first, second and third quarters of 2010 and 2011.

What Employers Need to Know

Employers should be cautioned that taking advantage of this grace period for the second quarter of 2010 payment could have a detrimental affect on their 2011 tax rate assignment. Any payments made after July 31, 2010 will NOT be included in the account balance used to calculate the 2011 tax rate. A lower account balance could result in a higher tax rate.

Tammy Mullin