Legislative lowdown: I-9 remote option, pay transparency

The Department of Homeland Security’s US Citizenship and Immigration Services (USCIS) published a final rule on July 21 that will allow some employers to verify employees’ I-9 documents remotely going forward, making an option that was first introduced during the Covid-19 pandemic permanent.

Here’s what HR pros need to know about the new rule, as well as recent legislative updates regarding the use of independent contractors and pay transparency.

Remote inspection. As of August 1, a new Form I-9 will be available for employers to verify the identity and work authorization of employees, per USCIS. Employers can continue to use the old form through October 31.

HR departments will be allowed to inspect employees’ I-9 documentation remotely, rather than in-person, as of August 1. A temporary remote option has been available to employers for the past three years, and is set to end on July 31. Employers must be participants in good standing with E-Verify, a government website that verifies employment eligibility, in order to take advantage of the alternative examination option.

NLRB ruling on independent contractors. The National Labor Relations Board on June 13 modified a Trump-era standard for determining if a worker qualifies as an independent contractor, rather than an employee. Independent contractors tend to have more flexibility, but are entitled to fewer benefits under federal law, such as the right to unionize or receive overtime pay.

Under the revised standard, “entrepreneurial opportunity” for profit or loss should be one among a number of factors considered when determining if an employee is a contractor, and not the “animating principle.” Other considerations include the extent of control an employer exercises over the details of an employee’s work, the length of time a worker is employed, and how they’re paid, the board ruled.

The ruling could make it more difficult for employers to use independent contractors, SHRM reported. David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, suggested employers reevaluate their written agreements for independent contractors in light of the decision. "Anybody using independent contractors needs to take notice of this. The gig economy is top of mind,” he told SHRM.

More pay transparency laws. Hawaii Gov. Josh Green signed a pay transparency bill into law on July 3, requiring employers in the state with 50 or more employees to share the expected hourly rate or salary range in job postings for open roles. The law, which won’t apply to internal transfers or promotions, will take effect January 1, 2024.

Illinois legislators also passed a pay transparency bill that’s expected to be signed into law by the governor, and would take effect in 2025. It would apply to employers based in Illinois with 15 or more employees, and require them to share information about expected pay scale and benefits in job postings.

Similar laws are now in effect in New York, California, and Washington state.