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A Couple of Looming Deadlines: A New Federal I-9 Form and Required Texas Nonsubscriber Reporting

Pull out your calendar and add a couple of significant deadlines coming up in the next few months.

New I-9 Form Must Be Used by May 1, 2020

On Jan. 31, 2020, U.S. Citizenship and Immigration Services (USCIS) published a new Form I-9, Employment Eligibility Verification Form, bearing a version date of “Rev. 10/21/2019,” that all employers must begin using on May 1, 2020.

Until May 1, employers may continue using the current version of Form I-9 (Rev. 07/17/2017 N). Employers should not “update” their existing Form I-9s to the new form for current employees who already have a properly completed Form I-9, unless re-verification is otherwise required. (While we are on this subject, be sure you know how to store these records and how long to keep them!)

What has changed in the new version? Not a lot. On the paper version of the form, only the version date and the Office of Management and Budget date have changed. Despite these minor changes, as of May 1, 2020, employers using the old version of the form (Rev. 01/17/2017 N) will be committing a “substantive error” violation of Section 274A of the Immigration and Nationality Act.

The instructions for Form I-9 clarify several topics. Those subjects include who can act as an authorized representative (“any person” the company designates); that a company does not need to insert “N/A” on unused lines in the List A, B and C columns; a notation that the List C Employment Authorization Document issued by the Department of Homeland Security is not the same as the Employment Authorization Document (Form I-766) from List A; and, for List B, the instructions clarify that the identification card issued by a federal, state or local government agency is not the same as a “driver’s license or ID card issued by a State or outlying possession of the United States.”

The instructions also make clear that the employer, not the authorized representative, is liable for any violations. Thus, while a company may choose anyone to serve as an authorized representative, that choice should be made carefully and steps taken to ensure that the representative understands how to complete the form correctly.

Finally, the fillable Form I-9 also changed the names of two countries in the drop-down fields for the Country of Issuance field in Section 1 and the Issuing Authority field in Section 2 when selecting a foreign passport: Eswatini (formerly known as Swaziland) and North Macedonia (formerly the Republic of Macedonia).

Annual Nonsubscribers' Workers' Compensation Reporting Ends April 30, 2020 - Plus More WC Nonsubscriber Must-Knows

In Texas, purchasing workers’ compensation insurance is optional. However, even “nonsubscribers” - those who do not provide workers’ compensation coverage have obligations. I find that such employers often have NO IDEA that these obligations exist.

Annual Submission of Notice of No WC Coverage

One of those obligations is submitting the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage by April 30 each year. This lets the Division of Workers Compensation (“DWC”), which is part of the Texas Department of Insurance, know that an employer has opted out of the workers’ compensation system or ended coverage. This form must be sent to the DWC each year between February 1 and April 30.

In addition, the DWC Form-005 must be filed within 30 days of hiring a first employee, unless this due date falls between February 1st and April 30th and the employer submits the form within this time period. Further, the form must be filed within 10 days of receiving a request (to file the DWC Form-005) from DWC and within 10 days after notifying the employer’s workers’ compensation insurance carrier that it is terminating coverage unless the business purchases a new policy or becomes a certified self-insurer. The DWC provides online resources for understanding the filing requirements.

If your only employees are exempt from coverage under the Texas Workers' Compensation Act (for example, certain domestic workers, certain farm and ranch workers) you do not have to file, however.

Required Notices to Employees

A nonsubscriber employer must post the Notice to Employees Concerning Workers' Compensation in Texas in the workplace in English, Spanish and any other language common to the employer's employee population in the print type specified by DWC rules whenever it does any of the following:

1. elects to not carry workers' compensation insurance; 2. cancels or terminates workers' compensation insurance; 3. withdraws from certified self-insurance; or 4. has its workers' compensation coverage cancelled by the insurance company.

The employer must also provide this notice to each employee:

1. at the time of hire; 2. when it elects to not have workers' compensation insurance; 3. within 15 days of notice to your workers’ compensation insurance carrier that it is terminating coverage unless it maintains continuous coverage under a new policy or become a certified self-insurer; and 4. within 15 days of cancellation by the insurance company.

The required notice may be found on the TDI website in English, Spanish and Vietnamese.

Many employers do not have a clue that this notice even exists. Be the exception!

Reporting Certain Employee Injuries

Another helpful word to the wary: DWC Form-007, Employer’s Report of Non-Covered Employee's Occupational Injury or Disease, lets DWC know that a nonsubscriber employer experienced a work-related injury, illness, or fatality. This requirement applies to nonsubscriber employers who have five or more employees. Special note: the requirement to file this form applies if an employer has you have employee(s) that have waived workers' compensation insurance coverage, whether or not the business carries workers’ compensation insurance.

For a more comprehensive look at this subject, the DWC offers a fact sheet and other online resources.

NOTE: This blog post does not constitute any form of legal advice, nor does it create an attorney-client relationship. This summary is provided merely for general informational purposes. Always consult qualified legal counsel concerning the application of the applicable laws to your particular circumstances.


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