AGRICULTURAL PERSONNEL
MANAGEMENT PROGRAM
NEWSLETTER

INS FORM I-9 IN TRANSITION ... On February 2, 1998, the INS issued proposed regulations that propose to cut the number of documents acceptable for employment eligibility verification nearly in half. The proposed rule would require any document presented to be unexpired. The INS believes most employers would prefer a simple rule that documents be unexpired to a list that includes exceptions.

Documents proposed for "removal" include school ID cards with a photograph, voter registration cards, and birth certificates issued by a State, county, municipal authority or U.S. possession. The INS notes Congress specifically eliminated birth certificates in 1996 legislation from the list of acceptable documents, based on its concern that birth certificates, "even if issued by lawful authority, may be fraudulent in that they do not belong to the person who has requested that one be issued." This problem is exacerbated by the thousands of authorities that issue birth certificates. INS officers also express concern about "the lack of uniform controls among States over issuance of replacement birth certificates."

The proposed rule would simplify requirements for preparers or translators assisting employees in completing section 1 of Form I-9. Current regulations require that preparers or translators read Form I-9 to the individual. The proposed rule would amend current regulations to require that preparers or translators "provide such assistance as is necessary for the individual to understand and complete the form."

The INS proposed creation of a one-page Form I-9A for reverification as a supplement to a proposed one-page Form I-9. A two-page instruction sheet was also published. (See insert.) Although Form I-9A is intended to simplify reverification, the INS seeks comment on whether employers would prefer to use Form I-9 for reverification as well as verification at the time of hire. The proposed rule makes clear employers may use either Form I-9A or Form I-9 for reverification, and that reverification doesn't apply to U.S. citizens or lawful permanent residents. A work authorization expiration date, triggering reverification, may appear in either section 1 or 2 of Form I-9 or I-9A.

HERE'S YOUR CHANCE ... Written comments (original and 2 copies) must be sent on or before April 3, 1998 to: Director, Policy Directives and Instructions Branch, INS, 425 I St., NW., Room 5307, Washington, DC 20536. Reference INS No. 1890-97 in correspondence. Explain the reasons for any recommended changes. The INS will accept e-mail comments (I9INFO@usdoj.gov). Reference INS No. 1890-97 both subject line and body of the message. E-mail comments must contain the sender's name, address, and phone number.

Don't jump the gun. Continue using the current Form I-9 (Rev. 11/21/91) and document list to verify employment eligibility until final regulations are issued -- perhaps by the end of the year.

SOCIAL SECURITY ADMINISTRATION OUTREACH HEIGHTENS ... Employers filing 250 or more W-2s for a tax year must provide the information on personal computer diskettes or magnetic tape. "This year, the Social Security Administration (SSA) will return W-2 reports filed on magnetic media without processing them if 50 percent or more of the 1997 W-2's are bad -- either the social security number (SSN) on the W-2 was never issued by the SSA, or the SSN is valid, but the name on the W-2 doesn't match the name on SSA's records," said Tim Beard, SSA Regional Magnetic Media Coordinator, Seattle.

Employers over the threshold are encouraged by the SSA to use the agency's free and voluntary Enumeration Verification System (EVS). Employers using the EVS can request verification of SSN and name for any worker for whom a W-2 will be prepared -- a current employee, former employee, or new employee after a commitment to hire has been made. Telephone verification, which the SSA seeks to expand, is limited to 5 new hires per call. Paper lists of up to 50 workers at a time may be submitted for verification at local SSA offices. Larger files may be submitted for verification on diskette. Employers can discontinue EVS participation at any time.

"Also, the SSA and the INS jointly operate a voluntary Employment Eligibility Confirmation Pilot Program in five States, one of which is California," Beard said. "Right now, there are fewer employers participating in the test than both agencys would like to see." (For information on the Pilot, call (202) 514-2317.) Beard observed, "in this arena, the amount of sharing of data between the two agencies is very small."

This year, the SSA launched an outreach program to employers filing over 100 "bad" W-2s -- on either paper or magnetic media. A grower shared his January 8, 1998 letter from the SSA with me.

The "polite" letter says, in part, "our records indicate your company has had a large number of earnings items placed in suspense in recent years." It goes on to encourage use of SSA's EVS, and to work with the local SSA office "to improve the wage reporting process." A description of EVS was attached. The grower was concerned about penalties. The IRS may impose a penalty of $50 per W-2 for reporting an incorrect or missing SSN.

"These penalties are not currently being assessed," said Bill Brees, SSA's San Francisco Regional Magnetic Media Coordinator, "unless the IRS is doing some other kind of audit, in which case they will also look at the taxpayer ID issue; if they find errors, then they'll add that on." Penalties for failure to file correct W-2s are avoided only if an employer can show the failure was due to reasonable cause and not "willful neglect."

Although INS Form I-9 "Employment Eligibility Verification" states "Employers cannot specify which document(s) they will accept from an employee," that doesn't preclude a company policy of asking all new hires to show their social security card (after Form I-9 is completed). Brees pointed out "employers are even allowed to photocopy the social security card, as long as they don't use a color copier."

Copying social security cards may help reduce reporting errors. The IRS instructions for completing W-2s say, in part, "The employee's first name, middle initial, and last name (as shown on the employee's social security card) are entered in Box e. Any employee without a social security card should apply for one by completing a Form SS-5, "Application for a Social Security Card."

Employers working with the SSA may discover workers for which there appears to be incorrect information. At that point, the SSA will not instruct employers on what to do. One approach is for the employer to notify workers still on the payroll of the situation, in confidence, and ask to see their social security card. Company errors will be clear (misspellings, names in wrong sequence, transposition of digits). Corrections can be sent to the SSA.

If information on the social security card matches that on the W-2, or an employee can't produce a social security card, the employer may want to advise her or him to visit the local SSA office to resolve the matter, and get a letter or "receipt" indicating a replacement or new card has been applied for. The employer may want to specify that the receipt or letter must be presented to the employer within a prescribed time (10 Federal working days, for example), and may decide to advise the worker that failure to follow these instructions may subject him to discipline up to and including termination for suspected false statements in employment documentation. From then on, the employer may decide to use SSA's EVS to verify social security accounts of all new hires.

LABOR CODE SECTION 132a - DO YOU KNOW IT? ... California Labor Code Section 132a prohibits discrimination against workers injured in the course and scope of their employment. Employers who fire or in any way discriminate against any employee because he or she receives a workers' compensation award (or files or makes known his or her intention to file for an award) are guilty of a misdemeanor and the employee's compensation "shall be increased by one-half, but in no event more than $10,000." Any such employee "shall also be entitled to reinstatement and reimbursement for lost wages and work benefits."

A farmer called me about this part of the workers' compensation system - trusting I'd share his case with others in the community. While his workers' compensation attorneys fought from 1992 to 1997 what he was convinced and "had video evidence" was a fraudulent claim, he was unaware the Section 132a "clock was running."

After the "injury," the farmer found and presented evidence the former foreman stole company property and added tens of thousands of extra miles to a company vehicle. Meanwhile, the ex-employee filed a claim with the Labor Commissioner for unpaid overtime (claiming he wasn't a supervisor), claimed improper eviction from employer-provided housing with California's Department of Housing and Community Development, and filed a lawsuit claiming the employer failed to accommodate his disability under the Americans with Disabilities Act. The farmer said the former worker told him "I'll have my eye on you the rest of your life."

After finally settling what the farmer called the "collision" part of workers' compensation (medical/disability payments), the judge rendered startling news. Although the foreman "admitted in court he had lied in previous testimony," the judge imposed sizable Section 132a penalties and back pay requirements against the farmer, and ordered that the foreman be reinstated.

The veteran farmer was appalled to learn workers' compensation doesn't insure these Section 132a costs of "improper termination." Having to pay penalties out-of-pocket and reinstate the foreman to supervise operations on his 300-acre ranch 60 miles from headquarters prompted him to appeal the judge's decision. Ultimately, he was relieved of the duty to reinstate the foreman, but this, he said, "also cost me a bundle."

CALIFORNIA MEALS AND LODGING MINIMUM WAGE CREDITS INCREASE ... Meals or lodging may not be credited against California's minimum wage without a voluntary agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's California minimum wage obligation, the amounts so credited -- effective March 1, 1998 -- may not be more than $27.05 per week for "room occupied alone," $22.30 per week for "room shared," $324.70 per month for an apartment (or no more than 2/3 of the ordinary rental value, if less), and $480.30 per month "where a couple are both employed by the employer" (or no more than 2/3 of the ordinary rental value, if less). Credits for breakfast, lunch, and dinner are $2.05, $2.85, and $3.80, respectively. Request official Notice MW-98 (Rev. 4-97), reflecting California's minimum wage and meals and lodging credits, on (415) 975-2080.

Worker Protection Standard Fieldworker Train the Trainer Workshop A half-day (9 a.m. to 1 p.m.) WPS "Trainers of Fieldworkers" Workshop will be conducted in English on Friday, April 3, 1998 at the UC Cooperative Extension Office, 1720 S. Maple Ave., Fresno, CA . Workshop is free, preregistration is required. Class size is limited. For information call Steve Sutter, Instructor, at (209) 456-7560.

HOT TOPICS IN AG LABOR LAW AND HUMAN RESOURCES OUTLOOK 1998 ... The California State University, Fresno, Center for Ag Business, in cooperation with the UC Agricultural Personnel Management Program will present a seminar, Wednesday, May 6, 1998, 8:00 a.m. to Noon, at the Harris Ranch Restaurant Garden Ballroom, in Coalinga, CA. I'll join in as a panelist. For further information, Kim Naffziger on (209) 278-4405.

IRS in Ag.... The Fresno-based "Ag Design Team" was formed by the IRS in 1994 "to address the problem of an estimated $200 million in unpaid agricultural employment taxes in the San Joaquin Valley." In seminars, Officer Jerry Satterberg has mentioned Internal Revenue Code Section 3505 that allows penalties against growers and packers who pay farm labor contractors commissions "they know aren't enough to enable the FLC to make timely employment tax deposits." The grower or packer's liability would be the taxes owed, with interest, limited to 25 percent of payments to the FLC.

California FLC license applications now include IRS Form 8821 "Tax Information Authorization" in an effort to assure new or renewal applicants have filed and paid all federal employment taxes due. "Since some FLC's may not have, or seek to have, a valid license," said Officer Raul Zabrano, "growers and packers may want to ask prospective FLCs to authorize disclosure of their federal tax status by signing and dating a completed Form 8821." Agricultural employers may request Form 8821 and instructions from the Ag Design Team on (209) 271-6250. Form 8821 instructions are complex. In a nutshell, list the FLC as "taxpayer" (Box 1); the grower (or packer) as "appointee" (Box 2). Under "tax matters" (Box 3), I suggest typing "employment" as type of tax, "940, 941, 943" as tax form numbers, and (in 1998), "1995 through 1997" as year(s) or period(s). Place an "X" in the box on line 4. Send the completed Form 8821 to IRS Ag Design Team, 5104 N. Blythe, Suite 105, Fresno, CA 93722. Indicate whether you prefer a telephone or written response.

PROGRESS ... California's Vehicle Code defines a "Farm Labor Vehicle" (FLV) as any motor vehicle designed, used, or maintained for transporting 9 or more farm workers, in addition to the driver, to or from a place of employment or employment-related activity. Farm Labor Vehicle drivers must possess a class B commercial driver's license and a "Farm Labor Driver's Certificate" Form DL-45. New applicants for the DL-45 must complete a minimum 20-hour course given by a state-certified instructor. Renewal applicants must complete 2 hours of continuing education, conducted by a State certified instructor, per 12 months Form DL-45 was effective.

Partly in response to my writing "Instructors to Train Farm Labor Vehicle Drivers Are Scarce" in UC APMP's Labor Management Decisions, California's Department of Education will offer a ONE-week course to certify farm labor vehicle driver instructors later this year. The current pool of 44 state-certified farm labor vehicle driver instructors joined school bus driver instructors in three-week courses to become certified. Farm labor vehicle drivers interested in the one-week course to become a certified FLV driver trainer should call (916) 322-4879.