The Attorney General’s Office is monitoring compliance with both existing labor laws and recent Executive Orders in place to manage the Coronavirus outbreak, including publishing guidance online and through social media posts on how to report employers who are violating these mandates. All employers are encouraged to fully comply with these mandates.
Department of Labor Updates
DOL issues Field Assistance Bulletin providing guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or working remotely.
Department of Homeland Security (DHS) Updates
COVID-19 has resulted in production delays of certain Employment Authorization Documents (Form I-766, EAD). Thus, the United States Citizenship and Immigration Services (USCIS) announced that employees may temporarily use Form I-797 Approval Notices (issued between December 1, 2019 and August 20, 2020) for EADs as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization. By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document.
ICE announces another extension to I-9 compliance flexibility. Due to the continued precautions related to COVID-19, the Department of Homeland Security (DHS) will further extend this policy. The expiration date for these accommodations is now Nov. 19.
DHS provides examples showing how it is recommended for employers to notate Form I-9 when remotely inspecting employment authorization and identity documents and then subsequently performing the required physical inspection once normal operations resume.
The Department of Homeland Security (DHS) will allow employers flexibility with respect to reviewing employee’s identity and employment authorization documents in the employee’s physical presence for employers implementing remote work practices due to the Coronavirus outbreak. Employers who elect this option must provide written documentation of their remote onboarding and telework policy for each employee. Once normal operations resume, all employees who were onboarded using remote verification, must report to their employer within three business days for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Please review the USCIS news release for full details and instructions if implementing this temporary work around.
COVID-19 Temporary Policy for List B Identity Documents
DHS has issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification. Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes. Refer to the USCIS website for detailed information on how to complete the form using an expired document and steps that must be taken within 90 days after DHS’s termination of this temporary policy.