Put Down The IKEA Manual, Turn Off ABBA, And Read This Newsletter

August 4, 2023

(Can you tell we’re just a little pumped about this weekend’s match against Sweden?) Hello August! Needless to say, there have been quite a few developments since our last newsletter. But, dear loyal reader, we know the truth – you care not about room temperature superconductors, the World Cup, indictments, or Barbenheimer – no, we know what you’re truly rooting for: a strategic play-by-play on I-9 reform. We get it, and for that, we sincerely apologize it took us this long to deliver the goods (we were busy reading about room temperature superconductors and indictments, and watching the World Cup and Barbenheimer . . .) As an apology, we decided to throw in some talking points about OSHA and LLCs – consider it a free kick. And last but certainly last, we’re pleased to announce a new addition to the team.

USCIS Says No Mas

Let’s talk I-9s. As you know, all employees must provide documentation establishing their work eligibility within three days of their hire date in the physical presence of the person inspecting said documentation. As you likely also remember, everyone started going buck-wild during the pandemic with remote hires, which made complying with this physical inspection rule more difficult. Everyone complained and the United States Citizenship and Immigration Services (USCIS) listened by temporarily suspending the physical inspection rule and allowing employers to remotely inspect all authorization documents. BUT, USCIS was very clear that this was a suspension of the rule – not a cancellation – and that any remotely inspected documents would need to be re-inspected in-person once the suspension was lifted.

Alas, all good things must come to an end (unlike, hopefully, our World Cup hopes and dreams), and the USCIS officially will be ending this rule and requiring all employers to complete in-person physical document inspections for employees whose documents were inspected remotely during the pause by August 30, 2023.

So now what do you do? Well, if you were enrolled in E-Verify at the time of the remote inspection, we have some great news for you . . . if, however, you just found yourself saying “E-what?” and you hired a bunch of people miles away from your headquarters, we’d suggest you keep reading.

Importantly, the physical inspection of the I-9 documents must be done by the employer or the employer’s authorized representative. We’re frequently asked for guidance on solving this virtual inspection issue (we are the life of the party anywhere we go) and our answer is almost always to use an authorized representative. An authorized representative can be any person you designate, hire, or contract with to complete, update, or make corrections to the Form I-9. And while the authorized representative can truly be anyone – even a family member of the employee – be careful before allowing cousin Cletus to do the physical inspection as the company retains ultimate liability for compliance. Fortunately, it seems like this is becoming a bit of a cottage industry, and so if you’re unable to find someone you know and trust, you can always point the employees in the way of a local bank or other reputable provider (like your lawyer!). Just make sure to get this done by August 30th!

OSHA Updates Reporting Requirements to Provide for Electronic Reporting

Juggling from one popular government agency to another, the Occupational Safety and Health Administration (“OSHA”) recently updated its recordkeeping requirements to require additional electronic submissions for injury reporting (yes, more paperwork). Previously, the rules required that employers with 250 or more employees (as well as employers with 20-249 employees who are in high-risk industries) to electronically submit OSHA’s Form 300A-Summary of Work-Related Injuries and Illnesses on an annual basis. Now, employers with 100 or more employees who are in high-risk industries must join the party as well.

If you haven’t already, employers should create an account once the website is updated to provide for rollout of this new requirement, and the website will allow for manual entry of info or a document upload.

The final rule also:

  1. Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;
  2. Clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and
  3. Incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

Thinking this has nothing to do with you? Ha! Remember, employers with 10 or more employees (who are not in an exempt industry) must keep records of workplace accidents/injuries on a contemporaneous basis (honestly, even if you aren’t subject to OSHA requirements, please keep these records anyway). Employers should circulate the “It’s the Law” OSHA poster, and have a reporting procedure policy in their handbooks.

If thinking about all these OSHA requirements is making you want to replace the “A” in OSHA with an “IT”, feel free to give us a call – or grab a drink – we’re here to help, not judge.

Increased Regulations for NY LLCs!

These updates concerning I-9s and OSHA have you feeling like you just got megged? We know just the trick to cheer you up – LLCs.

Beginning on January 1, 2024 (for newly formed entities) and January 1, 2025 (for existing entities), domestic and foreign entities will be required to disclose their individual owners to the Financial Crimes Enforcement Network. This applies to various business entities, including corporations and partnerships.

Never one to miss an opportunity to regulate, New York has recently passed the LLC Transparency Act (the “Act”). Although not yet signed into law, the Act will require state reporting of individual LLC members, including full name, date of birth, and current business address. This applies to previously incorporated LLCs already operating in the state. The Act will also create a publicly available database with this information, making it easier to identify the owners and members behind each LLC in the state. The Act is likely a crushing blow to foreign Oligarchs seeking to anonymously park their money, and a huge win for anyone wanting to know where their boss lives.

For now, this law would only apply to LLCs. Failure to comply with the Act could result in delinquency notices and civil penalties. So, what to do? For now, nothing – this isn’t in effect (yet). And, once it is, this is more of a reporting and privacy concern than anything else. Just another “thing” for business owners in NY to remember. We’ll be watching this closely and will provide updates once we know more. Just, please, in the meantime, don’t even get us started on NY’s LLC publication requirement . . .

Our Team Is Growing!

We are so incredibly pleased to announce the addition of Jon Hood, of Hood Venture Counsel, to the team in an of-counsel role! Jon brings a wealth of knowledge and experience dealing with startups and high-growth companies, particularly in the areas of corporate, securities, M&A, and intellectual property. His height will also allow us to finally be competitive in our intramural basketball league. I’m not sure which aspect our clients will appreciate more, but fortunately you don’t have to choose. Please join us in welcoming Jon!

Have a great weekend everyone – soak in those last few weeks of summer. And let’s go Team USA!  And remember, if you’ve got questions, you know we’ve got answers.

Damien + Brian

ABOUT WEINSTEIN + KLEIN P.C.

Established in 2019, Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. W + K works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, we advise small businesses and start-ups on various business law matters.

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