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Pre-Holiday Employment Law Considerations: I-9, Daylight Savings, and Voting Leave, Oh My!

With about nine weeks left in 2022, many are focused on preparing for the holidays and January 1, but keep in mind these employment law matters happening right now:

Form I-9: October 31, 2022

The current version of the Form I-9 is set to expire on Halloween this year. As is common, the Department of Homeland Security (DHS) has extended the validity of the current Form I-9 (rev. 10/21/2019) until it publishes the new version. After public comments were solicited this past spring regarding changes to the I-9, expect DHS to return to a one-page I-9 with Section 3 reverifications and name changes to be documented on an entirely new form. This would likely mean updates to employers’ I-9 processing and reverification protocols, especially if an employer utilizes a third-party vendor for electronic I-9 processing and storage.

Daylight Savings Time: November 6, 2022

With Daylight Savings Time ending at 2:00 A.M. on November 6th and “falling back” to 1:00 A.M., hourly employees who work through the change will be entitled to pay for that extra hour of work. Employers need to ensure they are correctly calculating that additional hour of work when determining employees' overtime compensation to avoid any payroll errors. Federal and state law require employers to pay employees for all hours worked. While almost all modern time-keeping systems will update their internal clock for daylight savings time automatically, employers are ultimately responsible for ensuring their time-keeping systems account for the time change and their employees are paid accurately. The Fair Labor Standards Act requires that hourly employees be paid overtime wages for any time worked over 40 hours in a given workweek. Various jurisdictions also require overtime payments for time worked above eight (8) hours in a workday. Keep this extra hour in mind for any salaried, non-exempt employees as well as they may be owed overtime as a result of working through this time change.

Currently, under provisions of the Uniform Time Act, states may opt out of the yearly Daylight Savings changes like Arizona and Hawaii have but cannot opt out of the return to standard time without federal permission. This may change under the Sunshine Protection Act, which was passed in the Senate this past March. If passed by the House and signed by President Biden, states will be required to choose to operate either on standard or daylight time year-round beginning on November 5, 2023. Many states have recently proposed legislation providing use of daylight savings time year-round including Alabama, Delaware, Florida, Georgia, Idaho, Louisiana, Maine, Minnesota, Mississippi, Montana, Ohio, Oregon, South Carolina, Tennessee, Utah, Washington, and Wyoming.

Election Day: November 8, 2022

No federal voting leave law exists, but states have their own requirements, and they can vary widely. Employers are encouraged to spend time reviewing its voting leave policies yearly, especially multi-state employers. While states like Florida have no voting leave laws, Illinois employers can be required to provide up to two (2) hours of paid time off to vote with proper notice if the scheduled work hours begin less than two hours after the polls open and ends less than two hours before the polls close.

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