Compliance Tip of the Week
With Brian Elfrink and Gordon Middleton
Compliance Tips
For more compliance related tips, click and drag each tip to the left.
For tax years beginning on or after January 1, 2022, employers are not required to withhold Louisiana income tax from nonresident employee wages for services performed within Louisiana, unless the nonresident employee spends more than 25 days performing employment duties for the employer in Louisiana [S.B. 157, L. 2021].
If, during the calendar year, the number of days an employee spends performing employment duties in Louisiana exceeds the 25-day threshold, an employer is required to withhold and remit taxes for every day in the calendar year, including the first 25 days, on which the employee performs employment duties in Louisiana. The threshold does not apply to professional athletes, professional entertainers, public figures, qualified production employees (related to the motion picture industry), and staff members of professional athletic teams.
Currently, employers must withhold for all nonresidents regardless of the number of days worked in Louisiana. Louisiana does not have reciprocal withholding agreements with any states.
Sep 2, 2021
Louisiana Income Tax
Recently, E-Verify issued a reminder for employers that they are required to take action on Tentative Nonconfirmation ,(TNC), cases for their employees within 10 federal government working days. While most Social Security Administration offices are currently closed, this does not affect the 10-day requirement. Employers are required to complete the following steps in E-Verify within 10 federal government working days after receiving a TNC:
- Notify the employee of their TNC result as soon as possible within the 10 days.
- Give the employee a copy of the Further Action Notice, (FAN).
- Review the FAN with the employee in private and have them confirm whether the information displayed is correct.
- If the information is incorrect, close the case and select the statement indicating the information was not correct. After the case is closed, create a new case for your employee with the correct information.
- If the information is correct, proceed to the next step.
- Tell the employee they must decide whether to take action on the TNC by the 10th day after TNC is issued.
- If your employee chooses to take action on the TNC, select the appropriate option in E-Verify. Be sure to provide your employee with their Referral Date Confirmation which provides details on the next step your employee must take.
- If your employee chooses not to take action, select the appropriate option in E-Verify and close the case—the employee may then be terminated.
- Employers may consult the E-Verify User Manual for more details regarding the process.
If your employee does not give you their decision by the end of the 10th federal government working day after E-Verify issued the TNC, then you close the case.
Please note that if your employee no longer works for you or their TNC is a duplicate case, you are still required to close their TNC case in E-Verify. Employers should not delay closing cases and should close all cases as soon as possible.
Aug 31,2021
E-Verify TNC
Oregon Governor Kate Brown signed OR House Bill 3398 on July 27, delaying the starting date for contributions by employers and employees by one year, from Jan. 1, 2022, to Jan. 1, 2023. The starting date for benefit payments would be Sept. 3, 2023, instead of Jan. 1.
The Oregon Legislature passed the bill establishing the program in 2019, bringing the number of states with similar programs to eight. The Oregon Family Leave law calls for employers to contribute 40% and employees 60% to the fund based on payroll deductions. Workers who earn at least $1,000 during the previous year would qualify for up to 12 weeks of paid family leave, the maximum benefit set at $1,215 per week.
The acting director of the Oregon Employment Department sought the delay because the department intends to integrate collections of employer and employee contributions into its computer modernization project, which starts its first phase in July. The first phase also involves updating the collection of payroll taxes that employers pay into the state unemployment trust fund for benefits. Employees do not pay into that fund.
Though preparations for the new program have been ongoing since the Legislature passed it in 2019, Oregon Employment Department staff have been diverted to handle new and expanded federal unemployment benefit programs since the onset of the coronavirus pandemic in March 2020.
Stay tuned to this space for updates on this and other Paid Family Leave program
Aug 29,2021
OR House Bill 3398
On July 26, 2021, the Society for Human Resource Management, (SHRM), sent a letter to the acting Director of U.S. Citizenship and Immigration Services, Tracy Renaud. In the letter, SHRM made policy recommendations for the I-9 process based on a survey of members relating to the flexible document inspection provisions currently in place due to COVID-19. Those provisions allow for remote inspection of employee identity and employment authorization documents and are currently in place until the end of August, with another extension possible.
The recommendations focused on COVID-19 response items and modernization of the Form I-9 and its processes. SHRM suggested that the current relaxed guidance should be extended through December 31, 2021, and further if necessary. In addition, SHRM asked for further clarifying guidance on the “eventual wind-down” of the flexible guidance. As part of the guidance, SHRM requested a timeframe of no less than 90 days to review in-person documentation as well as the establishment of an authorized agent policy to review that documentation on behalf of employers.
The modernization recommendations included:
1) A request for a simplified Form I-9 with a new List of Acceptable Documents, including more alternative acceptable documents, with more flexibility when unexpected issues occur.
2) Streamlining I-9 and E-Verify into one process for employers who choose or are mandated to use E-Verify.
3) Issue public guidance regarding electronic I-9 platforms, including what makes a system non-compliant and taking into consideration both technological growth and guidance from other agencies regarding electronic signatures and audit trails.
4) A request to update the 1997 “Virtue Memorandum” that illustrates outlines what constitutes a technical/procedural violation vs a substantive violation, so that employers have a clearer vision as to what good-faith compliance procedures look like.
While it remains to be seen which, if any, of the recommendations USCIS may employ, I-9 modernization has been a hot topic for the past several years among both the employer I-9 completer community and Congress itself.
Continue watching this space for further updates regarding any changes to I-9 processes.
Aug 26,2021
SHRM I-9 Letter
On Friday, July 23, 2021, the Internal Revenue Service proposed regulations lowering the electronic filing threshold, so more employers will need to electronically file information returns such as W-2 and 1099 forms rather than filing them on paper. The proposed regulations would gradually reduce the threshold for filing information returns from 250 to 10 returns.
The proposed regulations posted are in line with a provision of the Taxpayer First Act of 2019, which required the IRS to improve its taxpayer service and modernize its technology. Businesses have been e-filing various kinds of information return forms with the IRS since the 1980s, including Forms 1042-S, 1098, 1099 series, 5498, 6248, 8027, W-2G, W-2 and W-2P unless they were granted a waiver or were under the 250-employee threshold. The Taxpayer First Act lowered the threshold and encouraged the IRS to require more employers to e-file their information returns.
The proposed regulations would gradually lower the threshold from 250 to 100 for information returns required to be filed during calendar year 2022, and then from 100 to 10 for information returns required to be filed after 2022. That would allow the IRS enough time to ensure it has resources and updated programming to handle and process the increased number of electronically filed information returns and the applications required to e-file those information returns.
The proposed regulations would aggregate all of an employer’s information returns (e.g., Forms W-2, 1099) to determine if the threshold is met instead of counting each type of form separately. Also, the proposed regulations would require that corrected information returns be filed in the same manner as the original form (either electronically or on paper).
The comment period for the proposed regulation runs through September 21, 2021.
Jul 23,2021
Electronic Filing
Clients often question how the 3-day completion requirement is enforced in relation to the Form I-9. More specifically, are weekends and holidays counted as part of the 3-day period? Timing does not include weekends and/or holidays unless the employer is open for business during those days. So, while most traditional office environments are likely excluded, this does frequently come into play for retail and restaurant employers, and can be a factor with healthcare and various other employers as well. As a reminder, employers struggling to meet the 3-day requirements may want to consider completing the Form I-9 in it’s entirely prior to the employee starting work for pay. The I-9 may be completed any time after an offer and acceptance has occurred, and early completion takes the question of what days do or do not count in relation to the 3-day rule out of the equation.
Jul 17,2021
3-day Completion Requirement
The Supreme Court recently rejected a third challenge to the Affordable Care Act (ACA) by a 7-2 margin. The court held that the plaintiffs in California v. Texas lacked standing to bring the lawsuit. This means that the plaintiff did not meet the minimum standards to establish standing under which the plaintiff should show the following: (1) the plaintiffs suffered an injury in fact, (2) the injury is fairly traceable to the challenged conduct of the defendant, and (3) that situation is likely to be redressed by a favorable judicial decision. The case was closed without the court opining on the merits of the case.
The plaintiffs unsuccessfully argued that they are harmed because the individual shared responsibility provisions increase Medicaid enrollment, which is partly funded by the states. The Supreme Court found the plaintiff states supplied no evidence to support their claim that Medicaid enrollment increases when the assessment to be imposed for not obtaining minimum essential coverage, (provided by Medicaid), is zero dollars. The court did not consider other specific arguments presented by the states and individuals because they had not been raised earlier in the litigation or in applicable briefs.
The lawsuit was originally filed in 2018 after the passage of the tax reform law that zeroed out the individual mandate. The Department of Justice, under the prior administration, decided against defending the law and sided with the lawsuit, leading a collection of 15 states to do so.
The court ruled 6-3 to strike down a challenge in 2015 in the case King v. Burwell that could have gotten rid of the law’s income-based subsidies to lower the cost of insurance.
In another case in 2012, NFIB vs. Sebelius, the court narrowly upheld the law by a 5-4 margin and found that the individual mandate was a tax and that states could not forcibly be required to expand Medicaid.
Given the Supreme Court’s latest decision, the immediate focus likely will continue to be on permanently expanding ACA tax credits and reversing course on policies advanced by the prior administration that are perceived to undermine the ACA.
Jul 6,2021
ACA Decision
Unless an employer is a federal contractor with a federal contract that contains an E-Verify clause, it generally cannot use E-Verify for existing employees. Thus, where the employer was enrolled in E-Verify but did not use the system as a business practice, it should not go back and create cases for any employees hired during the time there was deliberate non-use of E-Verify. However, if an employer learns that it inadvertently failed to create a case in E-Verify at a time when it was using E-Verify for all new employees, the employer should bring itself into compliance immediately by creating a case for the employee. The employer should then write an explanatory note explaining the discrepancy. (usually something akin to “internal audit uncovered no E-Verify case was opened at the time of hire for this employee when company E-Verify policy was to verify all new hires”)
Jun 25,2021
E-Verify (Federal Contractor)
Maine Governor Janet Mills recently signed legislation adopting a new nexus standard for corporate income tax, removing the sales tax registration requirement for persons making at least 200 separate transactions in Maine, clarifying the credit for income taxes paid to other states regarding COVID-19 telework, and adding a penalty for failing to file information returns.
For corporate income tax purposes, beginning with tax year 2022, a corporation has nexus with Maine if it (1) is organized or commercially based in Maine; or (2) although organized or commercially based outside of Maine, the corporation’s property in Maine exceeds $250,000, payroll in Maine exceeds $250,000, sales in Maine exceed $500,000, or 25% of the corporation’s property, payroll or sales is in Maine. A corporation that holds an interest directly or indirectly in a partnership has nexus with Maine if the partnership is organized or commercially based in Maine or if the partnership’s property, payroll or sales in Maine exceed any of the thresholds mentioned above. Under current law, Maine does not have a factor presence nexus standard for corporate income tax purposes.
Applicable to sales occurring on or after January 1, 2022, for sales tax purposes, the requirement that persons selling tangible personal property or taxable services in at least 200 separate transactions in the previous calendar year, or the current calendar year, is removed. However, such persons with gross sales exceeding $100,000 in the previous calendar year or the current calendar year must continue to register. This change also applies to marketplace facilitators.
Additionally, for tax years beginning in 2021, when determining whether compensation for personal services performed as an employee working remotely from a location in Maine is derived from sources in another jurisdiction for purposes of the credit for income tax paid to other taxing jurisdictions, the compensation is sourced to that jurisdiction if:
1) The employee was engaged in performing services from a location outside of Maine immediately before the COVID-19 state of emergency was declared;
2) The employee commenced working remotely from Maine due to the COVID-19 pandemic and during Maine’s or the other jurisdiction’s state of emergency related to the COVID-19 pandemic;
3) The services were performed before January 1, 2022, and during either Maine’s or the other jurisdiction’s state of emergency;
4) The compensation is sourced by that jurisdiction as derived from or connected with sources in that jurisdiction under the laws of that jurisdiction; and
5) The employee does not qualify for an income tax credit in that jurisdiction for Maine income taxes paid as a result of the compensation.
Previously, Maine’s rule about this was limited to tax years beginning in 2020.
Persons required to file information returns on or after January 31, 2022, and who fail to do so, or who willfully furnish a false or fraudulent return, are subject to a $50 penalty for each failure. Previously, no penalty applied to this failure.
Employers should continue to monitor the tax landscape for changes regarding establishing nexus and withholding requirements that have come about because of COVID-19.
Jun 23,2021
Maine Nexus
Documentation is key to ensuring compliance in the workplace:
If something is important to the success of your business, then it should be documented in your employee handbook. The idea of documenting policies—especially creating them from scratch—often overwhelms employers, who frequently attempt to craft the perfect policy on the first draft. The fact is, employee policies and procedures do not have to be sophisticated. The most important aspect is having documentation—establishing the procedures and policies in writing, continually adjusting them over time, and applying them consistently.
Jun 18,2021
Documentation
With the extension of the I-9 Covid policies until 8/31, employers should be reminded that a Standard Operating Procedure, (SOP), document for all I-9 processes is a key component to any I-9 compliance plan. The SOP is helpful in that not only does it clearly lay out compliance policies for employers with numerous I-9 completers, it also assists auditors in evaluating forms. A clearly laid out SOP can be a key component to establishing a good faith compliance effort that can help mitigate or even eliminate any potential fines.
A good SOP will illustrate an employer’s position regarding such items as:
- Completion of the I-9 prior to the first day of work for pay.
- How the employer handles rehires in the I-9 process.
- Handling of more complex items such as reverifications, or specific E-Verify cases.
SOPs are a highly useful part of the overall I-9 process, and employers who have yet to develop a sound plan should revisit that process now, prior to the end of the Covid process, when remotely completed forms must be reviewed and normal documentation policies return.
May 28,2021
I-9 COVID Policies
Many employers hire employees months ahead of the start date, and a percentage of those begin the onboarding process prior to the first day of work. This often leads employers to question how far in advance they may create an E-Verify case for an employee with a future start date.
An employer may create a case in E-Verify for an employee whose first day of employment is up to 90 business days in the future. The employee’s first day of employment is the date the employee began (or will begin) work for pay. This date appears in Section 2, Certification on Form I-9 next to The employee’s first day of employment (mm/dd/yyyy).
The ability to select a future first day of employment does not change any policy, including the rule that prohibits prescreening. A prospective employee must have accepted an employment offer before you may complete Form I-9 and create a case in E-Verify. The offer and acceptance rule has long been applicable to the I-9 itself, and carries over to the creation of E-Verify cases.
May 17,2021
E-Verify: Future First Employment Date
The COVID-19 pandemic has shifted a number of previously in-person positions to remote work and telecommuting, and many employees have moved out of state from their usual office locations for personal or financial reasons.
Remote employees are generally subject to the laws of the city and state where they are physically located and perform work. There may be exceptions for employees who are temporarily located in a state or not considered based within a state. With employees working remotely outside their usual office locations, employers may need to familiarize themselves with the state and local employment laws of other jurisdictions. Failure to comply with state and local posting requirements, leave entitlements, wage and hour laws, etc. can result in liability for lost wages, penalties, noneconomic damages, and attorneys’ fees.
Employers should audit remote employees to ensure they are keeping abreast of all compliance requirements in all locations. Failure to do so could result in serious penalties and lead to larger compliance investigations.
May 4,2021
Remote Employees
On March 29, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that:
The 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021.
The deadline for submitting 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021. The data collection period for this year is extended to 12 weeks (from 10 weeks) to provide employers additional time to file in recognition of how differently the pandemic has effect workplaces and the requirement to submit two years of EEO-1 data.
The EEO-1 Component 1 collects workforce data from employers with 100 or more employees (and federal contractors with 50 or more employees). The EEOC will begin to formally notify EEO-1 filers via email beginning on March 29, 2021 and filers should begin preparing to submit data in anticipation of the April 26 opening of the data collection period. EEO filers can review the agency’s website for more information about data collection updates and resources to assist with their submissions.
April 11, 2021
ICE Flexible Guidelines
“ICE has once again extended the flexible guidelines pertaining to the physical presence of employees during the I-9 process. Employers may now continue to make use of remote processes for Section 2 verification until May 31, 2021. (The official ICE announcement may be found at https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility)
In addition to the extension, ICE also provided new guidance regarding employees working remotely under COVID guidelines, stating that employees hired on or after April 1, 2021 are exempt from the in-person verification requirement “until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” (These guidelines and the original March 2020 announcement may be found at https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance)
CIC+ will continue to monitor ICE guidelines relating to this topic and provide information on an ongoing basis.”
April 2, 2021
ICE Flexible Guidelines
“On occasion an employee with a completed I-9 may notify their employer that they used a false identity on a previously completed I-9, but indicates they are currently authorized to work. In such an instance, the employer should complete a new I-9, write the original hire date in Section 2, attach the former I-9 and provide an explanatory memo. The employer is under no obligation to terminate the employee.”
March 3, 2021
I-9 False Identity
“Many employers struggle to complete I-9s in a timely manner. This is a non-correctable, or “substantive” error which is subject to a fine. Employers who struggle with timeliness should consider completing the entire I-9 prior to the first day of work for pay. Once an offer and acceptance has occurred, the employer may complete the I-9 in its entirety. Employers who use E-Verify should keep in mind that an E-Verify case may only be created up to 90 days prior to the employee’s first day of work for pay.”
February 24, 2021
I-9 Substantive Errors
“There are two types of errors that can occur with Form I-9: Technical and Substantive. Technical errors are correctable, and the employer is given 10 business days to correct forms with these errors. Substantive errors are not correctible and are subject to fine.
Examples of Technical Errors include things like failure to include other names used, not supplying N/As where required, and not providing the employer representative’s title in Section 2, among numerous other items. These are not generally hard to correct, but the problem is they are usually so numerous the employer can not correct them in the allotted timeframe. Those that remain uncorrected move to Substantive Errors at the end of the 10 day period and are subject to fine.
Examples are Substantive Errors include failure to timely complete the I-9 in a timely fashion, missing I-9s, missing signatures, and incorrect documentation, among other items. Again, Substantive Errors are not correctible.”
Feb 17, 2021
I-9 Error Types
“An Immigration and Customs Enforcement (ICE) “Notice of Inspection” or NOI, typically gives an employer 72 hours to collect and submit the information requested. ICE generally asks for I-9s for either all active employees at a location, or I-9s for employees covering a specified date range.
What many employers don’t know is that even if they have completed I-9s for an individual, if that individual never started work for pay, the employer is under no obligation to produce that I-9, since the individual was never an actual employee and would not show up on payroll records.”