Miscellaneous Agencies
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Gift cards to employees: Do I need to pay taxes on them?
In general, cash, or its equivalent via gift cards and gift certificates, given to employees are considered taxable income by the IRS. Employers should tax gift cards and gift certificates given to employees, although there are some perks that can be given to employees that aren’t considered taxable. Those include tickets to a sporting or other entertainment event, birthday or holiday gift with a low fair-market value, flowers, and treats like coffee and snacks.
As an example, giving employees a holiday ham is considered de minimis and not taxable. However, pro- viding employees with a cash gift card to purchase a holiday ham, which could also be used to purchase other general merchandise, is taxable.
The Internal Revenue Service uses a term called de minimis to classify these kinds of low-value perks that are not taxable. In the original Latin, this means, “pertaining to minimal things.”
The IRS uses this term to classify a benefit that is small and infrequent, so much so that accounting for it is unreasonable or impractical. De minimis benefits are excluded under Internal Revenue Code section 132(a)(4) and include items which are not specifically excluded under other sections of the code. Be sure to consult with your accountant for questions about de minimis benefits.
Gifts to employees for special occasions fall into this category, as do the following:
- Controlled, occasional employee use of photocopier
- Occasional snacks, coffee, doughnuts,
- Occasional tickets for entertainment events
- Holiday gifts
- Occasional meal money or transportation expense for working overtime
- Group-term life insurance for employee spouse or dependent with face value not more than
$2,000
- Flowers, fruit, books, , provided under special circumstances
- Personal use of a cell phone provided by an employer primarily for business purposes
The important aspect of a de minimis benefit is that it is an occasional or infrequent benefit. If a benefit is too big to be considered de minimis, the employee must pay taxes on that benefit.
If the benefit you are giving your employee qualifies as a de minimis benefit, there is no need to report it. If the benefit is taxable, it should be included in the employee’s W-2 under wages and subject to income tax withholding.
Rev. 5/31/23
Playing Music in Your Business
If you wish to play any music in your establishment—whether it’s recorded background music, live music, a juke box, or a disc jockey—you must have a license. As the business owner, you are responsible for obtaining the proper license, and you may be liable for copyright infringement if you do not. If your business is a corporation, stockholders and officers may also be held liable.
Furthermore, you may be liable even if:
- Music is performed in a private club
- Music is performed by an independent contractor
- You do not know what music is being played
- Musicians play copyrighted music after being told not to
- The business is operating at a loss for charitable purposes
- Musicians are playing their own arrangements
- Music is on the radio or TV
Merely owning a CD, tape, record, juke box, radio, television or any other device that plays music does not give a business owner the right to play music for the public. There may be other situations, not listed above, under which a business owner will be liable for copyright infringement if they don’t obtain a proper license. Ways to avoid copyright infringement:
- Enter a music licensing One way to avoid copyright infringement is to enter into a music licensing agreement with a performing rights organization (PRO). The four major PROs are BMI (800.925.8451), ASCAP (800.952.7227) SESAC (800.826.9996) and Global Music Rights
(globalmusicrights.com). After entering into an agreement with a PRO, you may play works by the artists it represents without infringing on their copyrights. However, because each PRO represents a different group of artists, you must still check to make sure that the music you wish to play is covered by your agreement. Furthermore, if you wish to play music by artists not represented by one of the three aforementioned PROs, you will need to make separate licensing arrangements.
- Purchase music from a music service. You may also avoid copyright infringement by purchasing music from a music service that will handle copyright clearance for you. Keep in mind, however, that you will still need to make separate licensing arrangements for any music played in your establishment that is not provided by the music service.
- If you have a jukebox, obtain a blanket license from the Jukebox License Office (JLO). JLO is a joint venture between BMI, ASCAP and Purchasing a blanket license through JLO allows your jukebox to play all songs in the ASCAP, BMI and SESAC repertoires. Once you are licensed with the JLO, you will receive a certificate that must be displayed in the title strip
holder of each jukebox you operate. If you already have music licensing agreements with BMI, ASCAP and SESAC, you do not need to purchase an additional juke box license. However, buying a jukebox license alone does not permit you to play music by any means other than a juke box, and not all juke boxes can be licensed through JLO. More information about juke box licensing can be found at the JLO website: jukeboxlicense.com.
- There are also music streaming Contact the Washington Hospitality Association for details.
Exemptions:
If you play music over the radio or television only, you are exempt from copyright laws if (a) your establishment is less than 3,750 gross square feet in area (not counting the parking lot), or (b) your establishment is more than 3,750 gross square feet and:
- You play no more than four televisions (no more than one per room), each measuring no more than 55” diagonally, with no more than six speakers total, and with no more than four speakers per room, and
- You play radios that have no more than six speakers total, with no more than four speakers per room. To qualify for the above exemptions, you must not charge a cover fee to see the television or listen to the radio.
Protections for Businesses That Play Music
Under House Bill 1763, which was signed into law in 2016 and became effective on Jan. 1. 2017, music licensing agencies cannot collect licensing fees in Washington unless they:
- Have a valid Washington UBI
- Register with the Department of Licensing and annually file an electronic copy of each performing rights agreement they use for royalty payments.
- Make available to business operators the most current list of each performing works to which they hold copyrights.
The law also establishes a code of conduct for music licensing agencies, requiring that licensing representatives operating in Washington state:
- Must identify themselves and disclose that they are agency
- Must disclose the purpose of being on your
- May not engage in any coercive conduct or be “substantially disruptive” to your
- May not use obscene or abusive language when communicating with you or your
- May not use or attempt to use any unfair or deceptive acts or practices in negotiating with you or your representatives.
- May communicate with you or your representatives during non-business hours by telephone or in-person at a location other than your business location only if you authorized them to do
- Must address all communication to your attorney if directed to do so by written notification from that attorney.
If the agency or its representatives violate any of the above, they are subject to a $1,000 fine. The law also calls on agencies to conduct outreach campaigns to educate businesses on their rights and responsibilities regarding copyrighted music.
Rev. 10/22/19
Service animals
According to the Washington State Attorney General’s Office, service animals are trained for the purpose of assisting or accommodating a person with a disability. Service animals are not pets. A service animal is defined as a dog or miniature horse “individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory,
psychiatric, intellectual or other mental disability.” (RCW 49.60.040; RCW 49.60.215) The work or tasks performed by the service animal must be directly related to the individual’s disability. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks under the law. Washington state law details the rights and responsibilities of businesses and service animal handlers.
Rights and responsibilities of businesses:
- A business may not ask about a person’s disability or for medical
- A business may only ask:
- If the animal is a service animal, and if so;
- What task the animal is trained to
- A service animal can be excluded if its handler does not answer both
- Businesses may ask that a service animal be removed in certain circumstances, such as if the animal is out of control or is not housebroken.
Rights and responsibilities of service animal handlers:
- If asked to do so, an owner of a service animal must describe what task the service animal is trained to do.
- Owners must be able to effectively control their
- Service animals are not required to wear harnesses or have any kind of
- Service animals are allowed to accompany a person with disabilities into places of public accommodation, this includes food establishments, doctors’ offices, and other areas that fall within the categories outlined in ADA Regulations or RCW 49.60.
Misrepresenting an animal as a service animal is illegal and subject to a maximum penalty of $500. Below are some common questions.
Q: What laws apply to my business?
A: Under the federal Americans with Disabilities Act (ADA) and the Washington Law Against Discrimination (WLAD), privately owned businesses that serve the public, such as restaurants, hotels, retail stores, theaters, concert halls and sports facilities, may not discriminate against individuals with disabilities. These laws require businesses to allow people with disabilities to bring their service animals into whatever areas customers are generally allowed. Violations may lead to money damages and penalties.
Q: What is a service animal?
A: Under both the ADA and the WLAD, a service animal is any dog or miniature horse that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. An animal that merely provides emotional support, well-being, comfort, companionship, or protection by being present is not a service animal.
Q: How can I tell if an animal is really a service animal and not just a pet?
A: In Washington, the legal requirements for service animals are the same as the ADA. Some, but not all, service animals wear special collars and harnesses. Some, but not all, are licensed or certified and have identification papers. If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a service animal required because of a disability.
You may ask what tasks the service animal is trained to perform, but you may not require special ID cards for the service animal or ask about the person’s disability. An individual who is going to a restaurant is not likely to be carrying documentation of their medical condition or disability.
Therefore, such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal. You may not insist on proof of state certification before permitting the service animal to accompany the person with a disability.
Q: Can animals other than dogs be service animals?
A: The definition of “service animal” under the ADA and WLAD includes dogs and mini horses. All other species are excluded. Both laws require business owners to make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse, if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
Q: What must I do when an individual with a service animal comes to my business?
A: The service animal must be permitted to accompany the individual with a disability to all areas of the facility where customers are normally allowed to go. An individual with a service animal may not be segregated from other customers. In determining whether reasonable modifications can be made to accommodate a miniature horse, a business may consider the type, size, and weight of the miniature horse and whether the facility can accommodate these features; whether the handler has sufficient control of the miniature horse; whether the miniature horse is housebroken; and whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
Q: I have always had a clearly posted “no pets” policy at my establishment. Must I still allow service animals in?
A: Yes. A service animal is not a pet. The ADA and WLAD require you to modify your “no pets” policy to allow the use of a service animal by a person with a disability. This does not mean you must abandon your “no pets” policy altogether but you must make an exception to your general rule for service animals.
Q: My county health department has told me that only a seeing eye or guide dog has to be admitted. If I follow those regulations, am I violating the ADA and WLAD?
A: Yes, if you refuse to admit any other type of service animal on the basis of local health department regulations or other state or local laws you are violating the ADA and WLAD. The ADA provides greater protection for individuals with disabilities and so it takes priority over the local or state laws or regulations. Furthermore, there is no evidence that healthy, vaccinated, well-trained service animals are any greater threat to public health and safety than members of the public.
Q: Can I charge a maintenance fee for customers who bring service animals into my business?
A: No. Neither a deposit nor a surcharge may be imposed on an individual with a disability as a condition to allowing a service animal to accompany the individual with a disability, even if deposits are routinely required for pets. However, a business may charge its customers with disabilities for damage caused by a service animal, so long as it is the regular practice of the
business to charge non-disabled customers for the same types of damages. For example, a hotel can charge a guest with a disability for the cost of repairing or cleaning furniture damaged by a service animal if it is the hotel’s policy to charge when non-disabled guests cause such damage.
Q: Am I responsible for the animal while the person with a disability in my business?
A: No. The care or supervision of a service animal is solely the responsibility of the person it accompanies in your business. You are not required to provide care or food for the animal.
Q: What if a service animal barks or growls at other people, or otherwise acts out of control? A: You may exclude any animal, including a service animal, from your facility when that animal’s behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not, however, make assumptions about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually. Additionally, you should give the individual whose service animal was excluded the option of continuing to enjoy your establishment without the service animal present.
Q: Can I exclude an animal that doesn’t really seem dangerous but is disruptive to my business? A: You may exclude such an animal under very limited circumstances. Specifically, a business is not required to accommodate a service animal when doing so would result in a fundamental alteration to the nature of the business. Generally, this is not likely to occur in restaurants, hotels, retail, stores, theaters, concert halls and sports facilities. But when it does, for example, when a dog barks during a movie, the animal may be excluded.
Q: Can I refuse service to a person with a service animal if my employee or other customers are afraid of animals or have animal-specific allergies?
A: No. Allergies and fear of animals are generally not valid reasons for denying access or refusing service to people with service animals.
Q: May I exclude a service animal in training or a person who does not have a disability but says that their animal is a trained service animal?
A: Yes. The WLAD and ADA do not address animals that are not trained. While you may choose to accommodate these animals, you are not legally obligated to do so. Additionally, the WLAD and ADA protect the rights of individuals with disabilities, and do not apply to non-disabled individuals, even if they happen to be accompanied by trained service animals.
Q: What if I have more questions?
A: If you have further questions about service animals or other requirements of the ADA and WLAD, call:
- S. Department of Justice’s ADA Information Line 800.514.0301 (voice) 800.514.0383 (TTY)
- Washington State Human Rights Commission 233.3247 (voice) 800.300.7525 (TTY)
You can also read more here, https://www.hum.wa.gov/sites/default/files/public/publications/ DOJ%20Q%26A%20Service%20Animals.pdf
Rev. 10/31/23
Credit cards – EMV
What is EMV? U.S. banks have switched the insides of credit cards. They added something called EMV technology, which stands for “Europay, MasterCard and Visa.” Translation: Credit cards are equipped with a super-small chip that’s extremely hard to counterfeit. If you’ve received a card recently, it has an EMV chip. EMV is not the same as PCI DSS. EMV protects against counterfeit card fraud, PCI compliance focuses on security of sensitive data.
To be EMV compliant, you will need new hardware to read these chips. The magnetic swipe will not be EMV compliant. Instead of the swipe, the process is more of a “dip-the-chip.” Chip cards are inserted, or “dipped,” into the payment device and left in place for the entire transaction as the reader and card talk back and forth. We will get into the hardware more later but first let’s talk about how this affects you as a business owner.
What does this mean to me and my business?
Prior to 2015, credit card companies largely assumed liability for counterfeit card transactions. Without EMV, the liability shifts to the business owner who will be held liable for counterfeit transactions.
Is EMV compliance right for you?
EMV is not mandated or required for merchants, but there may be additional costs to become EMV compliant. You, the merchant, have the choice to implement EMV in your business.
EMV does not protect you against all chargebacks, the liability shift only covers counterfeit and lost or stolen cards. When presented with an EMV card for payment, if you do not have EMV equipment in place and there’s a chargeback on that transaction, you, the business owner, are 100% liable.
Chargebacks because of service or questionable charges are handled as done before October 2015.
So how do you know if you should implement EMV standards in your business? Here are a few considerations:
Location and demographic
Are you located in an area where counterfeit or lost and stolen cards are often used in your business? Do you accept a lot of international cards?
Chargeback ratios
How many chargebacks occurred in your business within the last year? What were the reasons for those chargebacks?
Cost vs. risk
What is the cost to implement EMV standards in your business and does that cost make sense for your business’ risk?
Nevertheless, the EMV train has left the station. It’s time to get on board if you’re not already. Rev. 12/06/23
Closed captioning in areas of public accommodation
In 2021, the Washington State Legislature approved SB 5027, which requires places of public accommodation to provide closed captioning on televisions in public areas.
Places that might have televisions in public spaces include but are not limited to:
- Bars
- Restaurants
- Salons and barber shops
- Hotel lobbies
- Transportation centers such as train stations and airports
- Visitor areas in hospitals, medical offices and media centers
- Waiting rooms in vehicle maintenance businesses
- Exceptions:
- If there are multiple televisions, up to 50% of them do not have to display closed captioning, but those that don’t have it displayed must be clearly marked that they are on mute or have the sound turned off.
- If the television is not able to display closed captioning, it is not
- If another state or federal law exempts the business from closed captioning, that law supersedes this one.
Employee training:
Employers are required to provide employees with training on closed captioning requirements. Employers may use this PDF guide, https://www.hum.wa.gov/sites/default/files/public/publications/ Closed%20Captioning%20in%20Places%20of%20Public%20Accommodation_pdf.pdf, and
this PowerPoint presentation, https://www.hum.wa.gov/sites/default/files/public/publications/ Closed%20Captioning%20in%20Places%20of%20Public%20Accommodation_ppt.pptx, as training materials.
Enforcement:
The Washington State Human Rights Commission enforces this law. If the commission receives a complaint and finds the business to be out of compliance, the business will receive written notice of the violation. The commission will provide information on how to fix the violation. The business will have 30 days to fix the violation. If it does not, the commission can fine the business $75 for each violation. If there are subsequent violations, the fines will be $150.
Read more about the new closed captioning law here: https://www.hum.wa.gov/sites/default/files/ public/publications/Closed%20Captioning%20Guidance.pdf
Rev. 10/27/23
ADA compliant websites
Why Website Accessibility Matters
From ada.gov:
Inaccessible web content means that people with disabilities are denied equal access to information. An inaccessible website can exclude people just as much as steps at an entrance to a physical location. Ensuring web accessibility for people with disabilities is a priority for the Department of Justice. In recent years, a multitude of services have moved online and people rely on websites like never before for all aspects of daily living. For example, accessing voting
information, finding up-to-date health and safety resources, and looking up mass transit schedules and fare information increasingly depend on having access to websites.
People with disabilities navigate the web in a variety of ways. People who are blind may use screen readers, which are devices that speak the text that appears on a screen. People who are deaf or hard of hearing may use captioning. And people whose disabilities affect their ability to grasp and use a mouse may use voice recognition software to control their computers and other devices with verbal commands.
The ways that websites are designed and set up can create unnecessary barriers that make it difficult or impossible for people with disabilities to use websites, just as physical barriers like steps can prevent some people with disabilities from entering a building. These barriers on the web keep people with disabilities from accessing information and programs that businesses and state and local governments make available to the public online. But these barriers can be prevented or removed so that websites are accessible to people with disabilities.
The Americans with Disabilities Act applies to businesses that are open to the public (Title III).
Title III prohibits discrimination against people with disabilities by businesses open to the public (also referred to as “public accommodations” under the ADA). The ADA requires that businesses open to the public provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodations to people with disabilities. Businesses open to the public must take steps to provide appropriate communication aids and services (often called “auxiliary aids and services”) where necessary to make sure they effectively communicate with individuals with disabilities. For example, communication aids and services can include interpreters, notetakers, captions, or assistive listening devices. Examples of businesses open to the public:
- Retail stores and other sales or retail establishments;
- Banks;
- Hotels, inns, and motels;
- Hospitals and medical offices;
- Food and drink establishments; and
- Auditoriums, theaters, and sports
A website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website—for example, a veterans’ service organization event registration form.
For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web. Learn more about how to make your website more accessible on the ADA website, https://www.ada.gov/resources/web-guidance/.
New hire reporting
Federal law and the Washington law RCW 26.23.040 require all employers to report all newly hired and rehired employees to the Washington Division of Child Support (DCS). Employers must also report employees who return to work after a furlough or leave without pay. Reports to the DCS must be submitted within 20 days of hiring, rehiring or return to work. Employers must also include dates of hire.
You may already know about new hire reporting. The program helps collect child support, reduce dependence on welfare programs and improve detection of Unemployment and L&I claim fraud.
DCS prefers that employers submit their reports electronically at its New Hire website: https:// www.dshs.wa.gov/esa/division-child-support/new-hire-reporting. The internet reporting method provides documentation of your report by sending an emailed response to registered employers.
I-9 forms are not acceptable.
All reports must contain the following information:
- Employee’s name
- Employee’s address (include the nine- digit ZIP Code, if known)
- Employee’s birth date
- Employee’s social security number
- Date of hire
- Your business name
- Your business address (include your nine-digit ZIP Code)
- Your Federal Employer ID number (FEIN)
Medical enrollment
If one of your employees is obligated by court order to provide health care coverage for a child, you may receive a National Medical Support Notice (NMSN) from the Division of Child Support advising you of your employee’s obligation. You are required to respond to this notice within 20 business days of the date on the notice. Additionally, you may be required to enroll the child identified in the notice in your health plan if they are eligible for coverage. The notice contains detailed instructions for both the employer and the insurance plan administrator.
DCS recognizes Indian tribal sovereignty. Indian tribes, tribally owned businesses, and Indian- owned businesses located on reservations, are exempt from new hire reporting requirements. However, voluntarily reporting of new or rehired employees is appreciated.
Division of Child Support (DCS)
NEW HIRE PROGRAM PO BOX 9023
Olympia, WA 98507
https://www.dshs.wa.gov/esa/division-child-support/new-hire-reporting
Phone: 800-562-0479
Fax: 800-782-0624
Rev. 11/17/23
All employers must soon use new I-9 Form: Eight compliance tips for employers
From Fisher Phillips
Federal immigration officials just made critical changes to modernize the I-9 employment verification process, not only announcing a new I-9 Form but providing remote verification flexibility for qualified employers that use E-Verify. The Department of Homeland Security announced on July 21 that the long-awaited new Form I-9 will be available for employers to use on August 1 – and that all employers must use the new form by November 1. Here are eight best practices for compliance given the new rules soon in effect.
DHS makes changes to the streamlined Form I-9
Employers should be on the lookout for the new Form I-9 in the next week and can begin using it on Aug. 1, 2023. You must use the new form by Nov. 1, 2023. The full list of DHS’s changes can be found here, but some highlights include:
- Reduced Sections 1 and 2 to a single-sided page by merging some fields;
- Moved the Section 1 Preparer/Translator Certification area to a separate, standalone Supplement A that employers can provide to employees, if needed;
- Ensured the form can be filled out on tablets and mobile devices;
- Ensured the form can be downloaded easily and removed the requirement to enter “N/A” in certain fields;
- Revised the Lists of Acceptable Documents page to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documentation; and
- Added a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than via physical
DHS also reduced the length of the Form I-9 Instructions from 15 pages to eight pages and streamlined the steps each actor takes to complete their section of the form, among other changes.
Qualified E-Verify employers may remotely examine Form I-9 documents
Under current Form I-9 rules, employers are required to physically examine an employee’s original identity and work authorization documents, which has created compliance challenges for many employers with remote hires.
To remedy this problem, DHS also created a framework allowing the agency secretary to authorize alternative document examination procedures as an optional alternative to the in-person physical document examination method.
The first alternative DHS authorized is an option for qualified E-Verify employers to remotely examine identity and work authorization documents beginning on Aug. 1, 2023. Qualified E-Verify employers are those employers who are in good standing with E-Verify, have enrolled in E-Verify with respect to all hiring sites that use the alternative procedure, and comply with all E-Verify requirements.
If a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, you must do so consistently for all employees at that site. However, you may choose to offer the alternative procedure for remote hires only and continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as you do not adopt such a practice for a discriminatory purpose or treat employees differently based on their citizenship, immigration status, or national origin.
A qualified E-Verify employer may continue to examine documents physically instead of remotely. Additionally, you must allow employees who are unable or unwilling to submit documentation using the alternative procedure to submit documentation for physical examination.
Requirements of the alternative document review procedure
Within three business days of an employee’s first day of employment, a qualified E-Verify employer (or an authorized representative acting on the employer’s behalf) who chooses to use the alternative procedure must:
- Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
- Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction;
- Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable;
- Retain a clear and legible copy of the documentation (front and back, if the documentation is two-sided); and
- Create an E-Verify case if the employee is a new
DHS provides relief for certain employers enrolled in E-Verify during COVID-19 flexibilities
Perhaps the most significant development is the alternative solution DHS is now offering qualified employers who were left with an arduous task of bringing in all the employees they hired remotely during the COVID-19 pandemic to review their original documents and annotate their I-9s by the upcoming Aug. 30, 2023 deadline.
Qualified E-Verify employers can use the alternative procedure to satisfy the required physical examination of an employee’s documents for that Form I-9 if you:
- Were enrolled in E-Verify at the time they performed a remote examination of an employee’s Form I-9 documentation for Section 2 or reverification while using the COVID-19 flexibilities;
- Created an E-Verify case for that employee (except for reverification); and
- Performed the remote inspection between March 20, 2020 and July 31,
Such employers should not create a new case in E-Verify. All qualified employers that use the alternative procedure instead of physical examination as described above must follow the steps of the alternative procedure and add “alternative procedure” with the date of examination (meaning the date the employer performed a live video interaction as required under the alternative procedure) to the Section 2 Additional Information field on the Form I-9 or in Section 3, as appropriate.
Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must still complete an in-person physical examination by Aug. 30.
Eight best practices for employers to maximize compliance
Even with the new improvements, the Form I-9 remains deceptively simple. Any time a one- page form requires eight pages of instructions, two supplements, a 146-page handbook on how to complete the form, and the potential for significant monetary and criminal penalties, it will continue to present a significant compliance challenge for employers. Here are eight steps you can take to create a culture of compliance:
- Provide updated training for all managers, human resources personnel, and staff involved in the I-9 process;
- Provide updated training for all involved in the E-Verify process, including training on fraud awareness and anti-discrimination;
- Update immigration policies in handbooks;
- If your company does not have an immigration compliance policy, now is the right time to consider implementing one;
- Update internal business processes associated with I-9s and E-Verify;
- If your company uses an electronic I-9 provider, contact the provider now to ensure its system incorporates the new changes and complies with DHS requirements, including audit trails;
- Enlist outside immigration counsel to conduct an attorney-client privileged audit of your I-9s that were completed from March 20, 2020, through July 31, 2023; and
- Evaluate E-Verify advantages and disadvantages with your immigration counsel to determine if your company should take advantage of the remote verification option for E-Verify
Conclusion
Fisher Phillips will continue to monitor developments once the Final Rules are published on July 25 and will provide additional guidance as it becomes available. We will also have a webinar in August to train employers on the New I-9 and alternative verification procedures.
Find a copy of the new Form I-9 here, I-9 Employment Eligibility Verification (uscis.gov). Rev. 10/30/23