Share The Knowledge: Forward this newsletter to a colleague.

Subscribe to AHI's Free E-Mail Newsletters: • HR Soapbox • Benefits Alert • Employment Law Today View samples and subscribe by visiting our website.

1. FEATURE STORY:
REVISED I-9 FORM RELEASED

Last week, the U.S. Citizenship and Immigration Services (USCIS) issued a revised Form I-9 (Employment Eligibility Verification) and M-274 (Handbook for Employers, Instructions for Completing the Form I-9). This version of the form — which has a revision date of June 5, 2007 — is the only one that is valid for use. Employers must use this form for any employees hired on or after November 7, 2007, although there is a 30-day transition period in which the government will not seek penalties against an employer that uses an older version of the form. New forms do not have to be completed for existing employees.

The main difference is List A of the Lists Of Acceptable Documents. It now reflects the document-reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The five documents that were removed from the list are:

• Certificate of U.S. Citizenship (Form N-560 or N-561),
• Certificate of Naturalization (Form N-550 or N-570),
• Alien Registration Receipt Card (I-151),
• Unexpired Reentry Permit (Form I-327),
• Unexpired Refugee Travel Document (Form I-571).

One document was added to List A: Unexpired Employment Authorization Document (I-766). It was included with all of the other Employment Authorization Documents with photographs that are in circulation (I-688, I-688A, I-688B) as one item on List A.

There is no change in the way you must complete the form. But are you sure your practices and procedures are sound? The Department of Homeland Security (DHS) continues to crack down on employers that knowingly employ illegal aliens. In fiscal year 2007, DHS had 863 criminal cases (up from 716 in fiscal year 2006) and over 4,000 administrative arrests (up from over 3,600 last year).

Last month, the former president of a nationwide cleaning service pled guilty to harboring illegal aliens and conspiring to defraud the United States. He will pay restitution to the United States in an amount expected to exceed $16 million. He will also agree to forfeit bank accounts and currency totaling more than $1.1 million for knowingly hiring illegal aliens. Said DHS Secretary Michael Chertoff: "[T]he days of treating employers who violate these laws by giving them the equivalent of a corporate parking ticket — those days are gone. It's now felonies, jail time, fines, and forfeitures."

Chertoff said he believes that the vast majority of employers "really do want to comply with the law. But we've got to give them the tools to do the job and to make sure that they are in compliance." AHI has a tool to help you ensure your I-9 process is legally sound. Check out the Complete I-9 Compliance Kit today.

2. CATHIE'S CORNER:
TO ASK, OR NOT TO ASK...THOSE QUESTIONS

A friend of mine is currently going to grad school for a Master's in Human Resources, and she tells me that there is still a lot of confusion about some of what the laws do and don't say. So from time to time I'm going to run through some of the issues that seem to promote the most confusion.

One that she mentioned to me the other day is the question of illegal hiring questions. All over the Internet there are references to questions that are reportedly illegal to ask. In actual fact, there are very few questions that are truly illegal, in the sense that there is a specific law saying, You cannot ask this question. The only one that comes to mind off the top of my head is the question of disabilities; an employer is strictly limited, by law, in what they can and cannot ask pre-offer regarding any disabilities an applicant may have. (Citizenship questions are too complicated to get into in this space; we'll discuss them at another time.)

The same is not necessarily true for the other questions we are frequently told are "illegal" questions. (Note: I am talking about federal laws here; your state laws' mileage may vary.) Yes, I am talking about questions regarding age, religion, children, marriage, etc. All the usual suspects. The questions themselves are not illegal. What is illegal is how the answers may be used.

I'll give you an example. Marital status is not a protected group under federal law. Neither is parental status. No law prohibits you from asking if an applicant is married or has children. No law prohibits you from asking if there will be issues with child care when it comes to any needed overtime.

BUT. History will show that these questions are most often asked of women, not of men. Think about it, when was the last time you asked a male applicant if there would be any issues with child care? Or even thought about asking one? The fact of the matter is, socially, we still tend to think in terms of women as providing the child care (though oddly enough, the only employee I have ever fired for excessive absences related to child care was a man). As a result, if you're asking the question of women and not of men, no matter how logical that may seem to you, a woman who does not get hired might conceivably believe she has a gender discrimination claim.

Just because you can ask the question, doesn't mean you should. If you don't have the information, you can't be accused of using it inappropriately. Even if you didn't make the hiring decision based on the answers to the child care question, perception is everything in employment law. If she believes you did, you may have to defend yourself against a discrimination claim whether you discriminated or not. Even if you ask the question of every single applicant, regardless of gender, how are you going to prove that? It's much easier if you simply do not ask the question, whether the question itself is technically illegal or not.

While I've used marital/parental status as an example, the same holds true for other "illegal" questions, as well. The bottom line comes down to this: You can't be accused of misusing information that you don't have. You are safer in not asking questions that you genuinely don't need the answer to (I'll discuss bona fide occupational qualifications — BFOQs — in another article) and sticking to questions that focus on the job, not the person.

Catherine Bannon is the President of HR by Request, Inc., in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting firm.

A BROKEN PROMISE BY HR EXTENDS STATUTE OF LIMITATIONS

If you don't mean it, then don't say it. A simple enough rule to live by. One employer recently learned the hard way that breaking a promise can extend...View the full story on our website.

FREE REPORT

Check out the 6 state-by-state Free Reports that have just been updated to reflect the latest state requirements on parental leave, smoking, sexual orientation discrimination, family/medical leave, termination pay, and personnel file access.