Workforce Issues to Focus On in 2020
The start of a new year is always a good time for a business to take stock of past practices and future actions, including around workforce compliance issues. In 2020, we believe the following 10 issues will impact U.S. employers from an immigration, pre-employment background screening, and general employment compliance perspective.
1. Immigration – Worksite Enforcement
Worksite enforcement actions by U.S. Immigration and Customs Enforcement (ICE) will continue to increase as they have over the past two years. Meaning, employers will continue to face heightened scrutiny from ICE into their hiring practices and compliance with paperwork requirements related to the employment eligibility verification form (the “Form I-9”). ICE has the authority to begin an investigation into a company’s compliance with the Form I-9 requirements to determine whether the company is hiring and maintaining a legal workforce and properly completing the Form I-9. The Immigration Reform and Control Act of 1986 (IRCA) requires all U.S. employers to complete and maintain a Form I-9 for all new hires, and the form must be completed within three (3) business days of hire. Employers who do not comply with workforce immigration laws are subject to civil and criminal penalties, both for hiring and/or maintaining undocumented workers and also paperwork violations related to the Form I-9.
2. Immigration – H-1B Online Registration for “Cap Cases”
Starting in 2020, the way in which employers’ petition for H-1B workers subject to the H-1B cap will change. H-1B workers are professional workers seeking employment in a “specialty occupation,” meaning an occupation requiring at least a bachelor’s degree or higher to fulfill the job duties. Instead of filing the H-1B petition in its entirety on April 1st (as has been the case the past few years), U.S. Citizenship and Immigration Services (USCIS) will require employers (or their authorized representative) submit an online registration through myUSCIS and then wait to see if their case is selected through the random lottery. USCIS will accept online registrations from March 1 to March 20. Assuming USCIS receives sufficient registrations to meet the statutory caps of 20,000 (for master’s degrees and higher) and 65,000 (for bachelor’s degrees) they will close the registration, conduct the random lottery, and alert employers whether or not their case(s) has been selected. Once selected, employers will have 90 days to submit an H-1B petition with USCIS for the selected worker.
3. Background Screening – Litigation Avoidance
Pre-employment background checks conducted by employers show no signs of slowing in 2020, and employers are considering continuous monitoring as well as greater checks of job candidates’ social media. While such checks are permissible, attention to compliance is critical as pre-employment background checks are the subject of federal, state and local laws and guidance. If using the services of a background screening company, the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (FCRA) applies. Employers must follow certain steps to ensure compliance with the FCRA and avoid litigation. The FCRA requires that employers provide job candidates with a clear and conspicuous disclosure, in a stand-alone document, advising the job candidate that a background check will be conducted. The candidate must provide their consent. If a background check is returned from the background screening provider and the report contains adverse information which may affect a candidate’s hiring, employers must follow the adverse action process. This process requires that employers provide the affected job candidate with a copy of the report and a disclosure called “A Summary of Your Rights Under the Fair Credit Reporting Act.” The candidate must be afforded at least five (5) business days to review the report for any inaccuracy or incomplete information. If, after that, an employer determines they are not going to hire the candidate they must follow the “adverse action process,” which requires that the candidate receive a letter with specific language about their rights pursuant to the FCRA. And this is just the tip of the iceberg as employers need to be aware of the EEOC’s guidance on the use of criminal history in employment screening, fair chance hiring laws (aka “ban the box”) as well as state restrictions on the use of credit history in employment screening. FULL ARTICLE