Cross-Border Counselor
Employment
Form I-9 and Remote Workers: Is the Flexibility Almost Over?
As most Canadian employers are aware, the Immigration Reform and Control Act of 1986 requires employers to verify the identity and employment authorization of each of their employees inside the United States. This process is documented through the completion of the United States Citizenship and Immigration Service (USCIS) Form I-9, Employment Eligibility Verification, for each employee at or shortly after their hiring date for work in the United States. The Form I-9 has two Sections. Section 1 is for the employee to complete and asks basic personal questions such as name, address, and date of birth with further optional information such as Social Security number, email address, and telephone number. Section 2 is completed by the employer and is to verify identity documentation furnished by the employee and which must be physically inspected by the employer. The acceptable documentation is elaborated by the USCIS in their Handbook for Employers found on their website here. With the advent of remote work in the midst of the COVID-19 pandemic, the physical verification requirement of Section 2 has become a legal touchstone for employers that are hiring in the pandemic that wish to fully comply with USCIS Form I-9 legal requirements. Canadian companies that have hired employees that work remotely inside the United States should have particular sensitivities to complying with United States immigration laws on employer verification. In March 2020, the Department of Homeland Security (DHS) announced it would be exercising prosecutorial discretion to defer the physical presence requirement associated with Form I-9 that only applies to those operating remotely, with no exceptions for employees physically present at a work location. In April 2021, DHS updated and extended this policy, pronouncing that newly hired employees working exclusively in a remote setting due to pandemic related precautions were temporarily exempt from the physical inspection requirements associated with Form I-9 until they return to “non-remote employment on a regular, consistent, or predictable basis.” Employers are given some flexibility if they are unable to timely inspect and verify, in-person, the Form I-9 documentary requirements and may document their reasons and attach them to affected employees’ Form I-9 that will be evaluated on a case-by-case basis in the event of a Form I-9 audit by DHS Immigration and Customs Enforcement (ICE) agents. In April 2022, DHS updated this policy with an extension of the above Form I-9 flexibilities until October 31, 2022. The policy, any changes, and its effective date can be found at the DHS ICE website here. For Canadian companies with United States-based remote employees, it is important to note that there are steps required to maintain compliance with both the Immigration Reform and Control Act and the updated DHS policies regarding the flexibility in enforcement of the physical inspection requirements associated with Form I-9. The verification flexibility announcements do not allow flexibility for Section 1 of the Form I-9, which is still expected to be completed by the employee prior to their first day of employment. Nor does the flexibility announcement allow the complete omission of any verification process for documents as to Section 2 of the Form 1-9.
July 11, 2022
Employment
States Expand Pay Transparency Requirements, Including for Remote Job Postings
In order to address income disparities and employer discrimination, a growing number of jurisdictions in the U.S. have implemented salary transparency laws that not only require disclosure of certain salary information during the hiring process upon request, but require public disclosure of salary ranges in all posted job advertisements. Canadian companies with U.S. employees should familiarize themselves with such laws and consider implementing a uniform policy for salary transparency as more and more states start requiring affirmative wage disclosures. Most recently, Washington State amended its Equal Pay and Opportunity Act to require employers to affirmatively disclose in job postings a wage range, plus any other benefits or compensation to be offered, regardless of whether the applicant requests this information. The law applies to all employers that do business in Washington with 15 or more employees. Without the amendment, the law currently requires employers to provide applicants the minimum salary for the position, but only if the applicant requests such information after the job offer has been made. A number of other states, such as California, Connecticut, Nevada, Maryland, and Rhode Island, similarly require disclosure of salary information to job applicants, but Washington takes it a step further by requiring the salary information to be publicly disclosed with any job posting. Washington’s new law takes effect on January 1, 2023, and is similar to laws in Colorado and New York City, which also require affirmative disclosure of wage information as part of the hiring process. For violations of Washington’s revised law, an employer may not only be subject to civil penalties imposed by the Department of Labor and Industries, but an employee may bring a claim against the company and recover actual or statutory damages, whichever is greater, plus attorneys’ fees and costs. The Colorado transparency law applies broadly and covers Canadian companies that have at least one employee in Colorado. The Colorado Department of Labor and Employment (CDLE) has clarified that compliance with its transparency rules is required in a job posting as long as the employer has at least one Colorado employee at the time of publication, and the job is tied to a location in Colorado or is advertised as being remote. The CDLE has further clarified that employers cannot get around the transparency rules by explicitly excluding from consideration applicants in Colorado. For example, job postings cannot state that that the job can be performed remotely from anywhere other than Colorado. If there is just one person living in Colorado and working for the employer, the salary range must be posted for remote jobs, regardless of the preference an employer might have as to the location of the employee. Accordingly, Canadian companies that have at least one Colorado employee must publish compensation information about positions located in, or positions that could be performed remotely from, Colorado at the time of the job posting. The New York City pay transparency law, which goes into effect May 15, 2022, similarly requires all New York City employers to state the minimum and maximum salary associated with an advertised job, promotion, or transfer opportunity. The law does not apply to advertisements for positions that are not required to be performed in New York City, so advertisements for remote positions or those for roles in other locations would not need to include salary information. Nonetheless, Canadian companies posting jobs online that are accessible by Colorado, New York City, or Washington residents may be required to include compensation and benefits information in the posting. For example, even if a position is open to employees from anywhere in the U.S. and can be worked remotely, that position may potentially be filled by someone working in Colorado, so the employer must post the compensation range if it is a covered employer under the Colorado law (i.e., if the employer has at least one employee in Colorado). In other words, nearly all positions that could be filled by an employee working remotely are covered by the Colorado statute, even if there is a low chance that the position would be filled by a Colorado applicant. Accordingly, Canadian companies that advertise in the U.S. and allow positions to be worked remotely must ensure that they are complying with the applicable state pay transparency laws. Canadian employers should assess which advertised positions would be covered by transparency laws, consider implementing a uniform policy that would comply with the strictest requirements, and make sure they have knowledgeable legal counsel to avoid civil penalties and damages for noncompliance.
April 18, 2022