Employers must begin using a new Form I-9 beginning February 2, 2009. The form (which will be available on www.uscis.gov in the near future) reflects the USCIS interim final rule which was published in the Federal Register on December 17, 2008. The final rule streamlines the Employment Eligibility Verification (Form I-9) process by:

• Eliminating Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A;

• Adding to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI);

• Adding the new U.S. Passport Card to List A;

• Revising the employee attestation section of the form; and

• Making clear that expired documents are no longer considered acceptable for proof of identification or work authorization.

Employers who fail to begin using the new I-9 form by February 2, 2009 may be subject to fines.

The form should be used for new hires, as well as to re-verify any employee with expiring employment authorization.

Effective February 1, 2009, employers are required to (1) provide a copy of Article 23-A of the Correction law to individuals subject to background checks, and (2) post a copy of Article 23-A in a visually conspicuous manner in an accessible location in the workplace.

Article 23-A of New York's Correction Law requires employers to consider and balance various factors before terminating or refusing to hire individuals with prior criminal convictions (absent a specific legal prohibition on hiring applicants with a criminal history).

Employers who evaluate an applicant's criminal history in accordance with the Article 23-A factors and hire such applicant in good faith are also afforded certain protections from negligent hiring claims under New York State Human Rights Law.

Copies of Article 23-A can be downloaded at www.labor.state.ny.us/agencyinfo/article23a.shtm.

New York Labor Law Section 203-d, which became effective January 3, 2009, states that employers may not, unless otherwise required by law:

• Publicly post or display an employee's social security number;

• Visibly print a social security number on any identification badge or card, including any time card;

• Place a social security number in files with unrestricted access; or

• Communicate an employee's personal identifying information to the general public. The law goes on to state that "personal identifying information" includes an employee's social security number, home address or telephone number, personal electronic mail address, Internet identification name or password, parent's surname prior to marriage, or drivers' license number.
  

The law imposes a civil penalty of up to $500.00 on any employer who "knowingly" violates Section 203-d, and states that "it shall be considered presumptive evidence that a violation of this section was knowing if the employer has not put in place any policies or procedures to safeguard against such violation, including procedures to notify relevant employees of these provisions."

Employers should also be aware of N.Y. Gen. Bus. Law Section 399-dd, which provides additional safeguards for employee social security numbers, and prevents employers from:

• Intentionally communicating or making available to the general public an individual's SSN (or any number derived from a person's SSN);
  

• Printing an individual's SSN on any card or tag required for the individual to access products, services or benefits;
  

• Requiring an individual to transmit his/her SSN over the Internet, unless the connection is secure or the SSN is encrypted;
  

• Requiring an individual to use his SSN to access an Internet web site, unless a password or personal identification number or other authentication device is also required to access the site; and

• Printing an individual's SSN on any materials mailed to the individual (unless state or federal law requires the SSN to be on the document).

The law goes on to list exceptions to these rules, including (but not limited to) employment applications, COBRA forms and medical/welfare benefit claim forms. 

Shared Work is a voluntary program administered by the New York State Department of Labor (NYSDOL) that provides New York employers facing a temporary decline in business with an alternative to layoffs. Rather than terminating a percentage of the work force to cut costs, an employer can reduce the hours and wages of all or a particular group of employees. The employees whose hours and wages are reduced can receive partial unemployment insurance benefits to supplement their lost wages.

The NYSDOL provides the following example to highlight how the program works: An employee earning $400 per week might receive an unemployment benefit rate of $200, if totally unemployed. Under the Shared Work Program, if the employee's wages and hours are reduced 20%, the employee would receive $320 per week in wages from his/her employer (20% of $400 equals an $80 reduction), and $40 in Shared Work Benefits (20% of $200). In other words, the employee would receive a total of $360.00 in wages and Shared Work benefits for each week of the plan.

The Shared Work Program is designed with the expressed purpose of helping both employers and employees: employers are spared the expense of recruiting, hiring and training new employees once "business picks up," and employees can avoid the hardships of termination and full unemployment.

During a benefit year, an employee may receive a maximum of 20 weeks of Shared Work benefits. Employers can find more information on the NYSDOL's Shared Work Program at www.labor.state.ny.us/ui/dande/sharedwork1.shtm.

Feel free to contact us should you require any assistance, or have any questions regarding the information contained in this newsletter.