Category Archives: Labor

Employers should use revised Form I-9 for employee verification

Are you using the correct version of the I-9 Form to verify that your new employees are eligible for employment?  Employers  must now use only the revised July 17, 2017 version of Form I-9 for employment eligibility verification for new hires.

The U.S. Citizenship and Immigration Services (USCIS) made a few revisions on the July 17, 2017 version of the I-9 Form.  Employers can now accept an individual’s Consular Report of Birth Abroad (Form FS-240) as an acceptable document for employment authorization under List C.  The instructions for the new form also reflect the name change for the office that enforces anti-discrimination provisions of the Immigration and Nationality Act.  The office is now called the Immigrant and Employee Rights Section, which replaces the previous Office of Special Counsel for Immigration-Related Unfair Employment Practices.

The current I-9 Form is available here.  USCIS provides helpful resources to assist employers with completing the I-9 Form are here.

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Employers Must Use New Form I-9 Beginning January 22, 2017

Beginning January 22, 2017, employers must use a new version of Form I-9 for employment eligibility verification of new hires.  The U.S. Citizenship and Immigration Services (USCIS) revised Form I-9  last November and gave employers a short grace period for making the conversion to the new form, dated 11/14/16.  The new form is available on the USCIS website at https://www.uscis.gov/i-9.

Employers will  notice several improvements to the new I-9:

  • The instructions are now separate from the form and include specific guidance on each section.
  • The form is much more computer-friendly, with drop-down lists, calendars, on screen prompts and instructions for each field, a “start over” button and easy access to full instructions.
  • The employer may now list more than one preparer and translator who assisted in completion of the form.
  • In the first section, the employer must list only “other last names used” rather than “other names used.”
  • A new “additional information” box provides space for the employer to note important information for the employer’s purposes such as additional documents presented, employee termination dates or form retention dates.

Employers must complete a Form I-9 to verify the identity and employment authorization of every individual hired for employment.  For more information, see our previous post on Form I-9, and visit the USCIS’s “I-9 Central” at https://www.uscis.gov/i-9-central.

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Employers can be liable for a worker’s violent acts

A recent decision by the Ohio Court of Appeals examines the issue of employer liability for a worker’s harmful acts.  The Twelfth District Court of Appeals clarified when an employer could be liable for injuries caused by a worker’s violent behavior, whether the worker is an independent contractor or an employee.   To read this post, visit our new blog site at aglaw.osu.edu/blog.

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Youth on the Farm: What Type of Farm Work Can They Perform?

Peggy Hall and Catharine Daniels, OSUE Agricultural & Resource Law Program

It’s hay and straw season in Ohio, which creates both a high need to employ youth on the farm and the challenging task of sorting out youth labor laws. Labor laws are intended to protect youth from risks and potential harms that can arise in hazardous jobs such as farm work. Before hiring youth to help with hay baling or other types of farm tasks, be sure you know the laws that govern the employment of youth in agricultural jobs.  Review the following to gain an understanding of these important laws.

Whose child?

The relationship of the minor you are hiring is important because the law treats your own children and grandchildren differently than non-related children working on your farm.   If the minor you hire is your own child or grandchild, the law allows you to have the child do any type of job, including agricultural jobs considered “hazardous” under state and federal labor laws.  Step children, adopted children, foster children and other children for whom you are the guardian are also exempt from the hazardous jobs regulation.

For other children, age matters

For other youth who are not your own child or grandchild, the type of work you may assign the child depends upon his or her age.   “Other children” includes strangers, students, neighborhood children, friends, nieces, nephews and any other relatives.  Only the older youth may perform “hazardous” farm work, as follows:

  • 16 and 17 year olds – May perform any type of farm job including agricultural jobs considered hazardous.
  • 14 and 15 year olds – May not perform any job listed as hazardous unless the child holds a 4-H or vocational agriculture certificate of completion for tractor operation or machine operation and the employer keeps a copy of the certificate on file with the minor employee’s record.
  • 12 and 13 year olds – May not  perform any job listed as hazardous; may only perform non-hazardous jobs if with written consent for employment from a parent or guardian or if the child is working on a farm that also employs the child’s parent or guardian.
  • 11 year olds and younger – May not perform hazardous jobs.  May only perform non-hazardous farm work if a parent or guardian gives written consent and if the child will be working on a farm where employees are exempt from minimum wage requirements.  A farm is exempt from minimum wage if the farm had 500 or fewer man-days of agricultural labor in the preceding calendar year; a man-day is any day where a worker performs at least one hour of agricultural labor.

What jobs are “hazardous”?

Ohio has adopted the federal government’s determination of “hazardous” activities for youth, which is based upon the risk of harm posed by an activity.  Your own child or grandchild may perform hazardous tasks at any age, but other youth working on the farm must be at least 16 years of age to participate in these “hazardous” tasks:

  • Operating a tractor with over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such tractor.
  • Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines: corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, mobile pea viner, feed grinder, crop dryer, forage blower, auger conveyor, unloading mechanism of a nongravity-type self-unloading wagon or trailer, power post-hole digger, power post driver or nonwalking type rotary tiller,  trencher or earthmoving equipment, fork lift, potato combine or power-driven circular, band, or chain saw.
  • Working on a farm in a yard, pen, or stall occupied by a bull, boar or stud horse maintained for breeding purposes, a sow with suckling pigs, or a cow with a newborn calf with umbilical cord present.
  • Felling, bucking, skidding, loading, or unloading timber with a butt diameter of more than six inches.
  • Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet.
  • Driving a bus, truck or automobile when transporting passengers or riding on a tractor as a passenger or helper.
  • Working inside a fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere; an upright silo within two weeks after silage has been added or when a top unloading device is in operating position; a manure pit; or a horizontal silo while operating a tractor for packing purposes.
  • Handling or applying (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying) agricultural chemicals classified under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 et seq.) as Category I of toxicity, identified by the word “poison” and the “skull and crossbones” on the label or Category II of toxicity, identified by the word “warning” on the label.
  • Handling or using a blasting agent, including but not limited to dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord.
  • Transporting, transferring or applying anhydrous ammonia.

For example, if 14-year old Riley is Farmer Smith’s child or grandchild, the law allows Riley to drive a tractor for Farmer Smith.   But if Riley is not Farmer Smith’s child or grandchild, the law prohibits Riley from driving a tractor for Farmer Smith unless Riley holds a 4-H or vocational agriculture certificate of completion for tractor operation, because driving a tractor is a “hazardous” activity for 14-year olds.

What if I violate the “hazardous” jobs regulations?

Under Ohio law, you can be found guilty of a third degree misdemeanor for allowing a minor under the age of 16 to perform a hazardous job on your farm; penalties are up to a $500 fine and 60 days in jail for each violation.  Additionally, if the child is injured while engaged in an illegal hazardous activity, you could be assessed with an increased workers’ compensation premium.

How can I comply with the law?

To ensure that you don’t violate the labor regulations on hazardous jobs for youth, take a few precautions to protect both you and your child employee:

  • Verify the child’s age and keep records of your verification.
  • Know the list of agricultural work that is considered hazardous.
  • Remember that only your children or grandchildren are exempt from the hazardous jobs regulation; consider nieces, nephews, cousins and other relatives as “other children” who are subject to the hazardous jobs rules.
  • Ensure that your child employees know which jobs they may do and which jobs they may not perform.
  • Review safety practices with your youth employees.
  • For 14 and 15 year olds who have completed a 4-H or vocational agriculture tractor or machinery operation certificate, maintain a copy of the certificate with the employee’s records.

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Do You Have a Legal Workforce? The Importance of Form I-9 Compliance

Catharine Daniels, Attorney, OSUE Extension Agricultural & Resource Law Program

With the arrival of spring, many agricultural businesses may be looking to hire additional employees. Before putting those new employees to work, employers should take time to ensure a “legal” workforce.  One important step is following the Form I-9 Employment Eligibility Verification process.  And with the recent release of a new Form I-9, close attention to Form I-9 compliance is extremely important.

What is the purpose of Form I-9?  The form aims to verify the identity and employment of every person hired to perform labor or services in return for wages or for anything of value that is given in exchange for labor or services, including food and lodging.

Why worry about Form I-9?  Because correct completion of Form I-9 is both a legal mandate and a legal defense.  Federal law requires every employer to complete an I-9 form upon hiring an employee.    Filling out the form is not optional.  Even if the employer knows the new employee, knows of the employee or knows the employee’s family–the employer must do a Form I-9 for the employee.    Once properly completed, a Form I-9 is the employer’s defense against a potential claim of knowingly employing an unauthorized worker.

How does an employer complete Form I-9?  Form I-9 compliance requires completion of three sections, as follows:

  • Employers must have every newly hired employee complete Section 1 of the form no later than the first day of work for pay.  Section 1 requests personal employee information such as name, address, e-mail, phone number, date of birth and social security number and requires the employee to attest to his or her citizenship status.
  • No later than the third day of employment, the employer must complete and sign Section 2 of the form. Section 2 requires the employer to physically examine documentation presented by the employee showing identity and employment authorization.    There are three lists of acceptable documents; employees may present one document from List A or a combination of one document from List B and one document from List C.  Examples of documents include U.S. passports, driver’s licenses, social security cards and employment authorization from the Department of Homeland Security.
  • Section 3 applies to re-verification and rehires.  An employer must complete Section 3 only if the employee is not a U.S. citizen or lawful permanent resident and his or her employment authorization documentation has expired.  An employer may complete Section 3 for employees rehired within three years of the date that a Form I-9 was originally completed, or the employer  may choose to complete a new Form I-9 for the rehired employee.

What does an employer do with completed I-9 forms?  An employer must keep all completed  I-9 forms for all current employees and make the forms available to federal officials in the event of an inspection.  An employer must keep I-9 records for a certain period of time after employees stop working.  This period of time varies; the government provides a chart to help employers identify the appropriate period of time.

Are there penalties for non-compliance?  Yes.  An employee may be subject to civil penalties for failing to properly complete, retain or make the I-9 forms available for inspection.

When is the new Form I-9 effective?  On March 8, 2013, a new Form I-9 was released with revisions. The revised Form I-9 is now two pages long, includes expanded instructions, and has new fields for e-mail addresses, phone number, and foreign passport. Employers should be using this revised form now, but may continue to use the previous Form I-9 until May 7, 2013.

The importance of document inspection.   To avoid liability, the employer should properly inspect the employee’s documents.   The documents must reasonably appear to be genuine and relate to the person presenting them.  The employer’s duty is to verify the documentation; the job of fully “investigating” whether the employee is authorized to work rests with U.S. Immigration Customs Enforcement.  If an employee provides a document that does not appear to be genuine or relate to the employee and the employee cannot present other documentation, then the employer may terminate employment.

Avoiding discrimination liability.  Employers should make sure they do not engage in any discriminatory practices when it comes to the Form I-9.  At the pre-hire stage, an employer may not ask an applicant their citizenship, nationality, immigration status, type of work authorization, or green card status. After hiring the employee, an employer may not request a particular document for the employee to provide to complete the Form I-9; it is the employee’s decision as to what documents they will provide. An employer also may not request more documents than what are required by Form I-9.   Such actions by the employer might result in a discrimination claim.

For complete information about I-9 compliance, check out the “Handbook for Employers – Guidance for Completing Form I-9” on the  U.S Citizenship and Immigration Services I-9 Central website.

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