Marco A. Lucido

Updated Form I-9

Question: I heard the federal government just updated its Form I-9. Do I need to immediately start using the updated Form I-9 for new hires? What is new about Form I-9?

Answer: On July 21, 2023, the United States Citizenship and Immigration Services (USCIS) announced a new version of Form I-9, which employers should use starting August 1, 2023. The old version of Form I-9 will become obsolete and should not be used after October 31, 2023.

The new version of Form I-9 is intended to make it easier for employers to verify the identity and employment authorization of their employees.  USCIS made both the Form I-9 and its instruction sheet shorter and easier to comprehend.  One significant change in the I-9 is the optional checkbox to indicate that an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure.  As an alternative to the in-person physical document examination requirements of the past, employers may now examine the Form I-9 documents remotely.  To do so, employers must:

• Be enrolled in E-Verify,
• Examine and retain copies of all documents,
• Conduct a live video interaction with the employee after the employee transmits a copy of the employment authorization documents, and
• Create an E-Verify case if the employee is a new hire.

Employers who are not currently enrolled in E-Verify may enroll and begin to utilize the alternative virtual verification procedure after August 1, 2023.

Starting on August 1, 2023, employers may download the new Form I-9 from the USCIS website at www.uscis.gov/i-9.  Employers can order the paper Form I-9 at www.uscis.gov/forms/forms-bymail.  For more information, the public can contact the USCIS Contact Center at 800-375-5283 or visit USCIS’ I-9 Central webpage at www.uscis.gov/i-9central.

Also, the Department of Homeland Security (DHS) recently announced that the temporary rules allowing remote examination of Form I-9 documents (referred to as the COVID-19 flexibilities) will end on July 31, 2023.  Employers that followed the temporary COVID-19 flexibility rules and did not perform an in-person review of the actual employment verification documentation presented by the employee will be required to now perform a reverification for all such employees by August 30, 2023.   Employers who were participating in E-Verify and created a case for employees whose documents were examined remotely during COVID-19 flexibility period of March 20, 2020 to July 31, 2023 may choose to use the new remote verification procedure explained above to satisfy the reverification requirement.  However, employers who used the COVID-19 flexibility rules to remotely verify employment eligibility and who were not enrolled in E-Verify must complete an in-person reverification by physical examination of employment eligibility documents by August 30, 2023.

In an announcement the DHS stated “If an employer is otherwise compliant with the law and regulation – and had followed the COVID-19 flexibility guidance – U.S. Immigration and Customs Enforcement (ICE) will generally not focus its limited enforcement resources on Form I-9 verification violations for failing to complete physical document examination by August 30, 2023, particularly where the employer can show that it has taken timely steps to complete physical document examination within a reasonable period of time.”  However, employers may still be subject to significant penalties for each reverification case that is not completed by the August 30 deadline.

Employers who need guidance on compliance with these changes should contact their employment counsel.

by Marco A. Lucido

Mid-Year Check-In

Question: I try my best to stay up to date on new employment laws. I just realized that it’s already July and I’m wondering if there have been any recent changes and what I should expect heading into 2024.

Answer: In California, there is no off-season for employment law. This year, the Legislature, the Courts, and state and local regulators have been busy crafting new laws and regulations that may affect many employers. Below is a list of some recent developments, as well as some new potential laws on the horizon.

  •  Minimum Wage Rate Increases: Effective January 1, 2023, the minimum wage for all employers is $15.50. Many cities and counties have ordinances with higher minimum wage rates than California’s state minimum wage. Many cities and counties update their minimum wage rates mid-year. Effective July 1, 2023, the following localities will see increases to their minimum wage rates: Alameda, Berkeley, Emeryville, Fremont, Los Angeles City, Los Angeles County, Malibu, Milpitas, Pasadena, San Francisco, Santa Monica, and West Hollywood.

  •  Arbitration: Federal and state courts have been busy issuing numerous decisions affecting the enforceability of arbitration agreements for employees. Earlier this year, the federal Ninth Circuit Court of Appeal held that California’s ban on mandatory arbitration agreements was preempted by federal law. In the state court system, several Courts of Appeal have weighed in on the extent to which employers can limit employees from pursuing representative claims under California’s Private Attorney Generals Act. This fall, the California Supreme Court is expected to issue an important decision to give employers some clarity on the scope of enforceable arbitration agreements.

•  Senate Bill 553 (Occupational safety: workplace violence: restraining orders and workplace violence prevention plan): If approved, this legislation would establish new workplace violence prevention standards in California. Specifically, it would require most employers to establish, implement, and maintain a workplace violence prevention plan. It would also require covered employers to record information in a violent incident log about every incident, post-incident response, and workplace violence injury investigation. These requirements would be separate from and in addition to employer requirements under the current Cal/OSHA Injury and Illness Prevention Program (IIPP).

  •  Revival of the Industrial Welfare Commission: The current State budget bill contains a provision that would potentially revive the California Industrial Welfare Commission (IWC). The IWC was created over 100 years ago to regulate the wages, hours, and conditions of employment in California. It was disbanded in 2004 as part of the 2004-2005 budget agreement. If revived, the oversight of the IWC would impact nearly every employer in California. The commission would have the power to convene industry-specific wage boards to regulate the wages, hours, and working conditions in various industries through new orders, and the authority to issue subpoenas and conduct discovery.

  •  Senate Bill 403 (Discrimination on the Basis of Caste): If passed, this bill would amend the Fair Employment and Housing Act to include “caste” status as a characteristic that is protected from discrimination and harassment. The bill defines “caste” as an individual’s perceived position in a system of social stratification on the basis of inherited status.

Because the laws affecting employers in California are ever-changing, employers and human resource professionals should monitor these developments and consult their employment counsel to ensure they remain up to date on their legal obligations.

by Marco A. Lucido

Artificial Intelligence in the Workplace

Question: I am planning to use an AI system to help my business recruit, hire, and evaluate employees. Are there any special considerations that I should keep in mind?

Answer: Yes. The use of AI in employment may be new, but employers still must ensure that their use of this new technology does not violate long-standing federal and state anti-discrimination laws. Under federal and California law, neutral tests or selection procedures, including algorithmic decision-making tools, are prohibited if they have a disparate impact on various protected categories including race, disability, national origin, age, or sex. While AI has the potential to enhance efficiency and productivity, there are concerns about its potential to perpetuate bias and discrimination. To help employers understand these concerns, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance on the use of AI systems in a range of HR-related tasks. The guidance is available here:

The EEOC’s guidance addresses the potential risks and challenges associated with AI-driven processes that may inadvertently discriminate against protected groups.  In its guidance, the EEOC puts the burden of compliance with discrimination laws squarely on employers.  According to the EEOC, “if an employer administers a selection procedure, it may be responsible under Title VII if the procedure discriminates on a basis prohibited by Title VII, even if the test was developed by an outside vendor.”  Some key takeaways from the EEOC guidance include:

1. Avoiding Discriminatory Impact: Employers are responsible for assessing and managing the potential for AI algorithms to result in unfair treatment or adverse impact on protected groups. Employers must ensure that their AI systems are properly designed, regularly monitored, and periodically audited to prevent discrimination.
2. Ensuring Transparency: Employers are encouraged to use AI tools that are transparent and explainable. This means understanding how the AI systems make decisions and being able to explain those decisions to applicants or employees.
3. Conducting Regular Validity Studies: Employers can reduce potential liability through regular evaluations of the accuracy, efficacy, and fairness of their AI systems.  These studies involve comparing the outcomes of the AI algorithms with real-world employment data to identify any adverse impact or potential bias.
4. Maintaining Accountability: Employers should have mechanisms in place to hold vendors and developers of AI systems accountable for ensuring that their technologies comply with anti-discrimination laws. Contracts and agreements should explicitly address the need for fairness and non-discriminatory practices in AI systems.

Additionally, California lawmakers have introduced new proposed regulations and laws that address the use of AI in employment decision-making.  For example, the California Civil Rights Council (CRC) recently issued updated proposed modifications to employment regulations regarding automated-decision systems. The CRC updated its draft regulation in February 2023 and is expected to issue a notice of proposed rulemaking soon to start the 45-day comment period.    (See https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/07/Attachment-G-Proposed-Modifications-to-Employment-Regulations-Regarding-Automated-Decision-Systems.pdf).  California lawmakers have also introduced multiple bills on AI-related topics, including a bill that will require audits of use of these tools by employers and developers.

The EEOC’s guidance and recent developments in California highlight the importance of addressing potential bias and discrimination in automated systems.  The use of AI in employment is new and will be subject to additional laws and regulations in the near future.  Employers should consult their labor and employment counsel to ensure they remain up to date on the use of AI in employment.

by Marco A. Lucido