USCIS released a revised version of Form I-9, Employment Eligibility Verification. The revised I-9 was released on July 17, 2017, and employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017. On September 18, 2017 employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9.

I’m starting 2017 off with videos taken from my recent webinar discussing local minimum wage issues, California’s new employment laws, Los Angeles’ ban the box ordinance, the new Form I-9 required in 2017, and potential impacts President-elect Trump may have on employment laws.  Happy New Year!

California state and local minimum wage and paid sick leave laws in 2017

California’s new wage discrimination laws in 2017

Los Angeles bans employers from asking about criminal background information

New Form I-9 required in 2017

President-elect Trump’s impact on California’s employment landscape

I hope everyone is having a great Thanksgiving weekend.  This Friday’s Five is about five common questions I’m receiving from California employers at the close of 2016.

1. Does the legalization of recreational use of marijuana in California with the passage of proposition 64 change employer’s rights to prohibit it in the workplace?

No.  Proposition 64 expressly provides that employers may prohibit marijuana in the workplace, and will not be required to accommodate an employee’s use of marijuana.  This is also consistent with the California Supreme Court’s holding in Ross v. Ragingwire Telecommunications, Inc.  In that case the court examined the conflict between California’s Compassionate Use Act, (which gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges and permission to possess the drug) and Federal law (which prohibits the drug’s possession, even by medical users).  The court held that the Compassionate Use Act did not intend to address the rights and obligation of employers and employees, and further noted that the possession and use of marijuana could not be a protected activity because it is still illegal under federal law.

2. Does Trump’s win change any laws facing employers in 2017?

While it is hard to predict the effect President-elect Trump will have on California employers, I previously wrote about potential impacts in immigration and E-verify issues, paid family leave, and the expansion of even more additional local laws.

3. When is the new Form I-9 required to be used by employers?

Employers must begin using the new Form I-9 by January 22, 2017.  It is important to note that employees already hired with the older version of the Form I-9 do not have to complete the new version.  More information about the revised Form I-9 can be read here.

4. What new laws in California do employers need to understand for 2017?

New laws that will impact many California employers include:

  • Prohibition on asking or taking into consideration juvenile convictions when hiring
  • Expansion of wage discrimination laws based on gender, race or ethnicity.
  • Employers with 25 or more employees are required to provide written notice to employees about rights provided to domestic violence victims under California law.
  • Employers are prohibited from requiring employees who primarily reside and work in California to agree to adjudicate claims outside of California or apply another state’s laws in arbitration agreements.

My prior post contains more information about the laws facing California employers in 2017.

5. When are you conducting your next webinar?

Join me on December 13, at 11:00 a.m. Pacific time for a webinar: “Employment law update: Essential issues facing California employers in 2017.” (I had to throw this self-promoting question in the line-up.)  You can register for the webinar here.

USCIS has published a revised Form I-9 that employers can begin to use immediately.  The old Form I-9 that has the revision date of 03/08/13 can be used until January 22, 2017.

USCIS published two versions of the Form I-9 – one form that can be completed on a computer, and another that is the traditional PDF version that can be printed and completed.

The USCIS hosted a teleconference today that explained some of the updates to the form.  During the teleconference, the following issues were addressed:

  • The USCIS explained that P.O. Boxes are no longer expressly prohibited in section 1 information about the employee.  However, employers cannot use a P.O. Box for their addresses in section 2 of the form.
  • The new form is only required for new hires or for re-verifying employee’s information.  It is not required for current employees who completed the old Form I-9 to complete the revised Form I-9.
  • On the teleconference there were a number of questions about the application of e-signatures when completing the I-9.  During the teleconference, the USCIS deferred answering any specific questions about e-signature options.  However, the Handbook for Employers provides the following:

If you complete Forms I-9 electronically using an electronic signature, your system for capturing electronic signatures must allow signatories to acknowledge that they read the attestation and attach the electronic signature to an electronically completed Form I-9. The system must also:

1.      Affix the electronic signature at the time of the transaction;

2.      Create and preserve a record verifying the identity of the person producing the signature; and

3.      Upon request of the employee, provide a printed confirmation of the transaction to the person providing the signature.

Employers who complete Forms I-9 electronically must attest to the required information in Section 2 of Form I-9.

During the teleconference, it was stressed by USCIS that electronic signatures are acceptable given that the software complies with the USCIS regulations.

  • Do employers have to provide the instructions to the employee when presented the Form I-9?  When on the computer, provide them with internet access so that they can click on the top of the page so that they can review the instructions.  If there is no internet access, you have to provide the instructions to the employee – print or download the instructions for the employee to read the 15 pages of instructions.

Finally, a note of caution for employers who retain copies of Form I-9 documentation.  The Handbook for Employers provides that if an employer chooses to retain copies of an employee’s documents, the employer must do so for all employees, regardless of national origin or citizenship status.  Failure to keep records for all employees could be in violation of anti-discrimination laws.

For more information, employers can visit the USCIS’ website at: https://www.uscis.gov/i-9

With more employers moving to digital personnel files, there is some concern about whether certain documents can be stored electronically or if the original document is necessary.  Generally, with the passage of the Electronic Signatures in Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA) by most states, e-signatures are given the same force and validity as traditional “wet” signatures.

Given the strict rules employers must comply with in completing and maintaining the Forms I-9 for employees, can employers implement an e-signature solution for the I-9 and can the I-9 be stored electronically?

The U.S. Citizenship and Immigration Services provides that employers can implement electronic signatures on the Form I-9:

Q.  How can I add an electronic signature field to Form I-9?

A.  The Form I-9 posted to the USCIS website does not currently have an electronic signature function and must remain locked to ensure its integrity. Employers who wish to implement an electronic Form I-9 with an electronic signature function may re-create a Form I-9 that includes such a function, as long as the form looks the same and contains all the data elements and language as the Form I-9 posted to the USCIS website. See 8 CFR 274a.2 (a)(2). The electronic Form I-9, which includes any electronic signature function an employer implements, and the system used to generate and store it must comply with regulations found at 8 CFR 274a.2 (e)-(i). See pages 23-26 of the Handbook for Employers: Instructions for Completing Form I-9 for more information.

In addition, employers may store the Forms I-9 electronically if certain requirements are met:

Employers may use a paper system, an electronic system or a combination of paper and electronic systems to store Forms I-9. An electronic storage system must:

Include controls to ensure the integrity, accuracy and reliability of the electronic storage system.

Include controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically stored Form I-9, including the electronic signature, if used.

Include controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms.

Include an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used.

Include a detailed index of all data so that any particular record can be accessed immediately.Produce a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper.