There are a number of reasons why an employee may present a new name to an employer, such as marriage, divorce, they are a victim of domestic violence, or their gender/name may differ from the sex/name they were assigned at birth. When an employee’s name does change, employers may have a responsibility to update certain records to reflect it. To help, here are some guidelines to keep in mind.
Changes to ‘legal name’
An individual’s legal name is the one used for official purposes, such as government-issued identification documents and employment-related records such as I-9, W-4 and W-2 forms. To change their legal name, an individual may have to follow certain steps, such as submitting applications to government agencies or obtaining a court order.
Form W-4
All new hires must complete a Form W-4 to determine the amount of federal income tax to withhold from their wages during payroll. Several states also require a tax withholding form. These forms should reflect the employee’s legal name.
If an employee informs you their legal name has changed, first ensure they have recorded their legal name change with the Social Security Administration. You can do so by asking to see their new Social Security Card that shows the name change (it typically takes 14 days for them to receive their new card). If it does reflect a name change, instruct the employee to submit a new Form W-4 with their new legal name, and then update payroll accordingly.
Form I-9
A Form I-9 must be completed for each new hire to verify the individual’s identity and that they are authorized to work in the United States. If they change their legal name during employment, the employer should update the form as soon as they learn of the change.
Before doing so, take steps to ensure the employee’s name change is accurate. This may include asking them to provide legal documentation showing the name change, such as a marriage certificate. Make a copy of that document to keep with their I-9 in the event of an inspection. To enter a legal name change:
- Enter the employee’s new name in Block A.
- Enter your name and sign and date Section 3.
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Note: You may encounter situations other than a legal name change where an employee informs you that their identity is different from what they used to complete their I-9. For example, an employee may have been working under a false identity, has subsequently obtained work authorization in their true identity, and wishes to regularize their employment records. In that case, you should complete a new I-9. Write the original hire date in Section 2 and attach the new I-9 to the previously completed Form I-9 and include a written explanation. Consult legal counsel to discuss next steps. |
Benefits
If an employee presents a new name, benefit plan records may need to be updated and new benefit cards may need to be issued. Additionally, an employee may be entitled to a special enrollment period for these benefits because of the life event that prompted the name change, such as marriage or divorce. Check with your benefits administrator to confirm plan requirements and let employees know how they can update their information and any special enrollment period (if applicable).
Other updates
If applicable, plan for updates to email addresses, employee directories, identification badges, nameplates, and other areas where an employee’s name is displayed. When an employee changes their legal name due to marriage or divorce, they may still wish to keep using their former name in their profession. In such cases, you may want to ask the employee whether they’d like to update to their new name or keep the same name for use with colleagues and clients.
Protections for name changes
Employees who present a new name because their gender/name differs from the sex/name they were assigned at birth may be protected under federal, state and local nondiscrimination laws.
For example, in guidance, the U.S. Equal Employment Opportunity Commission states that use of names (or pronouns) that are inconsistent with an individual’s gender identity can be considered harassment in certain circumstances. While accidental misuse of an employee’s name (or pronouns) doesn’t necessarily violate federal law, intentionally and repeatedly using the wrong one to refer to a transgender employee could contribute to an unlawful hostile work environment, according to the guidance. Certain state laws may have similar protections.
Among others, these protections generally prohibit employers from requiring individuals to obtain a court-ordered name change or present proof of government identification with a new name before using their self-identified name.
For example, in California, employers must generally abide by an employee's request to be identified with a certain name, according to state regulations. However, if it is necessary to meet a legally mandated obligation, such as a Form W-2, employers may use an employee's legal name as indicated in a government-issued identification document.
Conclusion
When an employee presents a new name, consider working with legal, tax and benefits professionals to assess the impact, and ensure compliance with federal, state and local requirements.