Employment Forms Update

While employers in New York State are still in the throes of implementing New York’s new anti-sexual harassment training and other requirements, they would be remiss to let other changes to employment laws escape them. Staying up-to-date on employment forms is critical. Among other things, it helps enhance compliance with applicable laws and mitigates the chance of litigation, government investigations and/or liability for related civil penalties.


Form W-4

In the wake of the Tax Cuts and Jobs Act, the Internal Revenue Service (“IRS”) rolled out a new Form W-4, Employee’s Withholding Allowance Certificate, in February of 2018. The 2018 version includes revised instructions for claiming exemptions from withholding and a revised worksheet, as well as the addition of a reference to the IRS’ online “withholding calculator,” which may be used in lieu of completing the worksheet. While the IRS is not requiring employers to obtain new Form W-4s from current employees, employers should be using the new Form W-4 for new hires. Additionally, the IRS’ open encouragement of wage earners to conduct a “paycheck checkup” using its online withholding calculator may spur current employees to submit a new W-4 regardless. The 2018 Form W-4 can be accessed on the IRS website.

Paid Family Leave Law (“PFLL”) – New York State

While most PFLL-related forms were issued prior to January 1, 2018 (i.e., the commencement date of the Paid Family Leave program), new PFLL-related forms were issued by the New York Workers Compensation Board (“WCB”) as recently as May 2018, such as:

  • Form PFL-DC-119, Formal Request for Reinstatement Regarding Paid Family Leave, used by an employee if after requesting to take paid family leave, an employer refuses to reinstate the employee to an original or comparable position, terminates the employee’s employment, reduces the employee’s pay and/or benefits, or disciplines the employee in any way.

Forms issued in January 2018 include:

  • FL-DC-120, Paid Family Leave Discrimination/Retaliation Complaint;
  • PFL-DC-130, Employer’s Response to Paid Family Leave Discrimination/Retaliation Complaint;
  • PFL-32-D, Section 32 Waiver Agreement: Paid Family Leave Discrimination/Retaliation Claim; and
  • PFL-300.5-D, Stipulation for Paid Family Leave Discrimination/Retaliation Claim.

Employers should regularly check for PFLL-related form updates, as revisions to forms are likely to occur as the program unfolds during its inaugural year. Employers can access all PFLL-related forms on the WCB’s website.

Form IT-2104 – New York State

All new hires should be completing New York’s 2018 Form IT-2104, Employee’s Withholding Allowance Certificate, in tandem with the 2018 W-4. The 2018 version of Form IT-2104 reflects recent tax rate schedule changes and can be found on New York’s Department of Taxation and Finance website.

Family Medical Leave Act (“FMLA”)

The U.S. Department of Labor (“DOL”) recently submitted a request to the Office of Management and Budget (“OMB”), pursuant to the Paperwork Reduction Act of 1995, to extend the use of all FMLA-related forms, including forms WH-380-E through WH-385-V, for another three years, without any substantive changes to the forms. While the OMB is still in the process of reviewing the DOL’s extension request, it has extended the forms’ original expiration deadline from May 31, 2018, to July 31, 2018, to August 31, 2018. It is anticipated that the OMB will keep extending the expiration deadline one month at a time until its review and approval process is complete. In the meantime, employers can access the most current version of the forms (currently marked with the August 31, 2018 deadline) on the DOL’s website.


Form I-9

Less than one year following the U.S. Citizenship and Immigration Services’ (“USCIS”) issuance of its modernized “smart” Form I-9 on November 14, 2016, USCIS issued a revised version of the Form I-9 on July 17, 2017, which included, among other subtle changes, the addition of a Consular Report of Birth Abroad (Form FS-240) as an acceptable List C document. It also included a revision to List C in connection with all certifications of report of birth issued by the Department of State. As of September 18, 2017, all employers are required to use the July 17, 2017 version of Form I-9 available on the USCIS website.

Employers should continue to monitor for updates to government agency-issued forms.

Additional Assistance

Should you have any questions regarding employment form updates or any other labor and employment matters, please contact any of the attorneys on our Labor & Employment Practice Team.