You had questions, and now I have answers!
I gave a presentation today and the audience had some great questions that I couldn’t answer at the time. I thought I would share my answers about the Form I-9, the new salary history rule, and the new “Ban the Box” rule here:
How can an employer check the work authorization / complete the Form I-9s of remote employees?
The employer has a variety of options when dealing with remote employees – the company can designate an authorized representative to fill out Forms I-9 on behalf of your company, including personnel officers, foremen, agents or notary public. Except, as pointed out by my friend Nancy Nelson, below, if the remote employees are in California, then the company can only use a notary public who is a properly bonded immigration consultant – even if acting in a non-notary capacity.
The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. Of course, if your authorized representative fills out Form I-9 on your behalf, you are still liable for any violations in connection with the form or the verification process.
The key is that you have someone who can physically examine each document presented and determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam (such as Skype, etc.) is not permissible.
If the employee is outside California, you can use a notary. The notaryshould just act as an authorized representative, not as a notary. This means you are using a notary, because you know that the notary understands the importance of looking at the physical documents and filling out the Form I-9 accurately and completely, but the notary public should not provide a notary seal on Form I-9.
The company using the authorized representative needs to pay any fees for those services. Don’t pass them on to the employee!
Special thanks to Nancy Nelson for pointing this out!
How should a company maintain its completed Form I-9s?
I like the old school method where an employer keeps all the current employees’ Form I-9s in a binder and in a separate binder, the employer keeps those of former employees. I like all the documents in one place and the ability to simply pull it out of a safe file cabinet when needed. But. . . you have other options!
Homeland Security allows for three methods of maintaining the records: paper, microfilm/ microfiche or electronic copy. DHS’ website explains the requirements for using each of these formats here.
Before selecting a method, keep in mind that Form I-9s contain a lot of personal information about employees, so you’ll want to maintain that information in a private, confidential place that cannot be accessed by anyone without a “need to know.”
No matter how you choose to store your Form I-9, you must be able to present them to government officials for inspection within 3 business days of the date when the request was properly and legally made.
What employers are exempt from the new “Ban the Box” law?
If your company has historically operated under an exception to the existing restrictions on questions about an applicant’s criminal history, you likely remain under an exception. As a threshold matter, only employers with 5 or more employees are covered by the new “Ban the Box” rules.
Also, the law states that it does not apply in any of the following circumstances:
- a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
- a position with a criminal justice agency
- a position as a Farm Labor Contractor
- a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.
Can employers ask applicants, “What is your salary expectation if you work here?” in light of the new Salary History rules?
Yes – so long as you don’t ask that in context with what the person’s salary history is. Don’t try to be too clever and ask this in a way that is really asking about salary history!
Can current employees ask for the pay scale for a position, like applicants now can?
Well, a current employee can ask – it cannot be against the rules or policies of the employer to ask! –but the employer isn’t required by law to provide the information.
California Employment Law Blog 