The Immigration and Customs Enforcement (ICE) has proposed regulations that would allow employers to inspect employment eligibility verification documents remotely when completing the I-9 Form. ICE recognizes that as a result of COVID-19, there are many more employees working remotely so wanted to provide flexibility to employers. The Equal Employment Opportunity Commission (EEOC) has released an independent study supporting the pay data collection it has undertaken as part of the EEO-1 reports completed by private employers and government contractors and announced that it has settled a COVID related disability case. A bipartisan worker flexibility bill has been introduced in the House of Representatives.

ICE Proposes Alternatives to Physical Inspection of I-9 Documents – The U.S. Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) has proposed a rule that would allow employers to inspect Form I-9, Employment Eligibility Verification documents remotely. Comments on the proposed rule will be accepted until October 17^th. According to ICE, the proposed rule “would allow employers (or agents acting on an employer's behalf) optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for purposes of completing the Form I-9.”

The Immigration Reform and Control Act of 1986 established an employment verification system for all newly hired employees. Within three business days after the first day of employment, employers must physically examine the documentation presented by new employees and complete the Form I-9. As a result of COVID-19, in March 2020, ICE announced that an employer could inspect Form I-9 documents remotely. The employer would be required, once normal operations resumed, to physically examine the employment verification documents. This temporary flexibility has been extended until October 31, 2022.

ICE recognizes that due to new working arrangements an increasing number of employees are working remotely. According to ICE, the proposed rule would allow the authorization of alternative options for document examination procedures as part of a pilot program, upon a determination that these procedures offer an equivalent level of security or as a temporary measure due to a public health or a national emergency. ICE is also proposing modifying the I-9 form to allow employers to indicate that documents were examined remotely.

Comments are sought on several issues including:

• Are there any costs or increased burdens for employers to retain documentation obtained remotely, as well as the benefits, costs, or any burdens related to such document retention?
• Would a fraudulent document detection and/or anti-discrimination training requirement for employers result in any costs or increased burdens for employers and employees who complete such training?
• Which population of employers should be eligible to use the alternative procedures (for example should it be limited to those employers who have enrolled in E-Verify)?

EEOC Independent Study Supports Pay Data Collection – The Equal Employment Opportunity Commission (EEOC) released a study undertaken by the National Academies of Sciences, Engineering, and Medicine that found the pay data collection from some private employers and federal contractors covering about 70,000 employers and over 100 million workers completed by EEOC in 2020 could be used effectively to focus resources to identify pay discrimination. “The study confirmed what we at the EEOC have long known – collecting and analyzing pay data can be a useful tool in preventing and combating pay discrimination in American workplaces,” said EEOC Chair Charlotte A. Burrows.

Among the study findings cited by EEOC were:

• Collecting pay data is necessary to assess pay practices and differences in compensation by sex, race, and ethnicity.
• The data the EEOC collected is unique and no other federal data collection captures the same information from private-sector employers.
• Pay data would enable the EEOC to pursue a more data-driven approach to investigation and resolution of discrimination charges and could be used to help prioritize investigations and the allocation of resources; identify systemic discrimination; and analyze national, regional, and industry-based pay gaps.
• To improve the EEOC’s ability to enforce the law and address pay disparities, the EEOC should expand and strengthen its data collections. It recommended several short- and long-term improvements that would not only enhance the reliability of any future pay data collection but would also make it easier for employers to produce the information.

Worker Flexibility Bill Introduced – A bipartisan bill, the Worker Flexibility and Choice Act (H.R. 8442) has been introduced in the House of Representatives-by-Representatives Cuellar (D-TX), Stefanik (R-NY), and Steel (R-CA). According to Representative Cuellar, the bill would establish a new work arrangement that “combines the flexibility of independent work with certain workplace protections and opportunity for additional benefits.”

The bill would amend the Fair Labor Standards Act (FLSA) to exclude from the term employee, anyone who has entered voluntarily into a worker flexibility agreement prior to the start of work. The worker flexibility agreement would provide the individual with coverage under some workplace laws such as privacy, nondiscrimination, non-harassment, nonretaliation, safety and leave under the Family and Medical Leave Act (FMLA).  The individual would not be treated as an employee under the FLSA and therefore not covered by the minimum wage and overtime provisions nor would the individual be considered an employee for federal tax purposes. The agreement would need to be in writing, entered into voluntarily, and be signed by both parties.

The bill has been referred to the Committees on Education and Labor and Ways and Means. The Labor Department has announced that it plans to issue regulations concerning independent contractors.

EEOC Settles COVID Disability Case – The Equal Employment Opportunity Commission (EEOC) announced it has settled a case against Gas Field Specialists, Inc. (GFS), that had fired an employee who had a history of cancer since they did not want him to contract COVID-19. The company agreed to provide the employee with $184,000 plus other non-monetary relief to settle the disability discrimination lawsuit filed by the EEOC.

An employee with 15 years with the employer was laid off and then terminated due to his history of cancer and a concern that the company did not want him to get sick with COVID-19. According to the EEOC, the employer’s actions violated the Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on disability or a history of disability. “Employers have an obligation to make personnel decisions without regard to employees’ medical history,” said Philadelphia District Regional Attorney Debra M. Lawrence.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.