Ask the Attorney: I-9 storage, exempt employees and alcohol in the workplace

Expert employment law attorney, Nancy Delogu, answers human resource and management’s legal questions about exempt employees, I-9s and alcohol in the workplace.

How should we store I-9s?

Q: “It is strongly suggested that federal Form I-9s be kept in a separate folder. If that is the case, do you have to have an individual folder for each I-9, or can all I-9s be in the same folder?” –Cindy, Ohio

A: The United States Citizenship and Immigration Services (USCIS) recommends that Forms I-9 and supporting documentation, if kept, be stored apart from personnel records in order to facilitate an audit or inspection. This allows you to keep separate related personnel records that need not be produced and which you would likely prefer to keep private.

If USCIS asks to review your Forms I-9, you must produce them within three business days. There is no reason that the records cannot be kept together; however, do take steps to safeguard access to these records, which contain private identifying information, so only reviewable by individuals with a need to do so.

Can we reduce an exempt employee’s hours and pay?

Q: “I have a salaried exempt associate who will be taking a reduction in hours starting in June. She is an officer of the company. She will be working 32 hours instead of current 45-50. Can we put this individual on an hourly rate instead of salary?” – Cindy, North Dakota

A: Yes, or you can pay her a reduced salary commensurate with her expected reduction in hours worked, if the work she performs continues to meet the necessary requirements to qualify as exempt from the FLSA’s overtime requirements.

Is there a two-year residency requirement for Pennsylvania’s in-home care workers?

Q: “For an agency that provides in-home care to seniors in Pennsylvania, the caretakers are required to provide proof of two-year residency. Would office staff also be required to have this even though they do not work in the home with the clients?” – Anonymous, Pennsylvania

A: The regulations I was able to review required criminal background checks and provisional hiring provisions of direct care workers. There was no two-year residency requirement, however; individuals who resided in Pennsylvania for less than two years were subject to a federal criminal background check and a longer probationary period than others.

How do we solve these problems concerning alcohol in the office?

Q: “The owner of our company recently added kegs to our offices in Idaho and California. How can I ensure we are protected against harassment and DUI? How do you create a policy about that? What if we hire a former alcoholic who is threatened by the presence of alcohol?” – Anonymous, Idaho

A: There is nothing inherently problematic with a decision to make alcohol available at work, but you are correct in thinking a policy explaining the permitted use of alcohol and taking steps to minimize liability for alcohol-related misconduct would be a wise idea. The good news is that is quite easy to create a policy—first, you determine when the alcohol use is permitted, and then you place some parameters around the use. For example, you might limit consumption to a certain time of the work day, and you would definitely wish to limit alcohol consumption to employees who are of legal drinking age.

Then, think about steps to ensure the employees know that they should not perform any safety-sensitive work after consuming alcohol. Even if you are an office based business, there are generally tasks that might be inappropriate to perform with alcohol in one’s system (for example, taking a vehicle to purchase supplies, visit the bank, etc.). Presumably, you’d like the policy to encourage responsible alcohol consumption, and so it may be appropriate to advise workers that although they are welcome to indulge, they must monitor their consumption so that they do not become intoxicated or impaired, and they are expected to behave professionally at all times—having a drink or two is no excuse for harassing behavior or lapses in judgment. You can encourage employees to use ride share services if they need to leave the office after having a drink.

Whatever you policy states, be prepared to enforce this policy. Remember, you have an obligation to take steps to ensure your workplace is safe and free of harassment. Finally, make it clear that no one is expected or required to consume alcohol as a condition of employment,, so your employees who choose not to consume alcohol, for whatever reason, are not pressured to conform.