Core Provisions: This act would alter the Family and Medical Leave Act (FMLA) to provide up to a full year of job protection, including protection from denial of any employment benefit or promotion, for any family member caring for a recovering service member at a military medical facility.

Status: H.R.3993 was introduced in the House by Rep. Altmire (D-PA) on October 30, 2007 and was referred to the House HELP Subcommittee on January 15, 2008.  S.1885 was introduced in the Senate by Sen. Obama (D-IL) on July 26, 2007 and was referred to the HELP Committee.

Core Provisions: ENDA would make it illegal for an employer to discriminate with respect to an individual’s actual or perceived sexual orientation. This discrimination would be prohibited in decisions regarding hiring, firing, compensation, and terms, conditions or privileges of employment. Employers also could not adversely limit, segregate or classify employees or applicants because of actual or perceived sexual orientation. The Act would apply to employers with 15 or more employees, but there is an exemption for religious employers. Because gender identity language was removed from H.R.3685 in order to facilitate its passage, Rep. Frank (D-MA) introduced H.R.3686 as a stand-alone bill prohibiting employment discrimination on the basis of an individual’s actual or perceived gender identity.

Status: H.R.3685 and H.R.3686 were introduced by Rep. Frank (D-MA) on September 27, 2007. H.R.3685 passed in the House on November 7, 2007 by a non-veto-proof tally of 235-184. The legislation was placed on the Senate Legislative Calendar on November 13, 2007. President Bush threatened to veto an earlier version of the bill, but a White House spokesman said the administration would need to review recent changes to ENDA before making a final decision on the fate of the Act. H.R.3686 was referred to the House Subcommittee on Health, Employment, Labor and Pensions on October 17, 2007. 

Core Provisions: This legislation authorizes the Department of Homeland Security to use an employer’s failure to timely resolve discrepancies with the Social Security Administration after receiving a “no match” notice as evidence that the employer violated section 274A of the INA. S.2710 provides that an employer is deemed to have “constructive knowledge” an employee is not authorized to work in the United States if the employer:

(A) receives a Social Security no-match letter notifying the employer that the Social Security Administration has been unable to match the employee’s name with the Social Security number provided by the employer; and

(B) fails to take the corrective action suggested by the Social Security Administration or the Department of Homeland Security within 90 days of receiving the letter described in subparagraph (A).

The bill also states that secretary of homeland security shall promulgate necessary regulations related to the amendment.

Status: On March 5, 2008, Sen. Sessions (R-AL) introduced S.2710. The bill was read the second time on March 6, 2008, and placed on the Senate Legislative Calendar under General Orders, Calendar No. 595.

Core Provisions: The Worksite Enforcement Act bars employment of unauthorized aliens either directly or through a contract or subcontract and outlines document verification and recordkeeping requirements. Like the New Employee Verification Act (H.R.5515), the Worksite Enforcement Act provides for EEVS to replace the current E-Verify program for verifying employees’ identification and work eligibility. The bill tightens reporting requirements and increases penalties for employers who incorrectly report employees’ social security numbers on tax documents. The bill also orders the social security commissioner to issue fraud-resistant social security cards, and orders the secretary of homeland security to establish a grant program to assist states in issuing identification cards that may be used to verify eligibility to work in the United States.

Status: On March 5, 2008, Sen. Sessions (R-AL) introduced S.2711. The bill was then placed on the Senate Legislative Calendar.

Core Provisions: The New Employee Verification Act would replace the government’s current E-Verify program with the Electronic Employment Verification System (EEVS) for verifying employees’ eligibility to work in the U.S. The legislation would affect those employers already participating in the E-Verify program pursuant to the Immigration and Nationality Act (INA), as well as employers that may be selected for participation by the secretary of homeland security. EEVS would be accessible via the Internet and a toll-free telephone line for determining whether an employee’s identification information is consistent with records maintained by Homeland Security and Health and Human Services, and whether the individual is eligible for employment.

Status: H.R.5515 was introduced by Rep. Johnson (R-TX) on February 28, 2008, and referred to several House committees including the Judiciary, Ways and Means, and Education and Labor Committees.

Core Provisions: H.R.4040 and S.2663 reform and strengthen the Consumer Product Safety Commission (CPSC). S. 2663 includes a whistleblower provision that provides employees with a procedure for bringing whistleblower complaints about consumer products to the attention of the DOL. After a specified period of time, either 90 days from a DOL determination or 210 days from the filing of the complaint (where the DOL fails to make a timely determination), employees may bring suit in federal court. Prevailing plaintiffs may receive compensatory and consequential damages, fees and costs, including reasonable attorneys’ and expert fees and up to $250,000 in punitive damages. Courts may also issue injunctive relief.

The bill contains a fee-shifting mechanism, under which the employer is fined all fees and costs when an adverse determination is made against it by the DOL. The legislation discourages bad faith or frivolous claims brought by disgruntled employees, providing for a mechanism by which DOL may award reasonable attorneys fees up to $1,000 when finding such an unmeritorious claim exists.

H.R.4040 does not contain a comparable whistleblower provision.

Status: S.2663 was introduced in the Senate by Sen. Pryor (D-AR) on February 25, 2008, and was passed by the Senate by a vote of 79-13 on March 6, 2008. H.R.4040 was introduced by Rep. Rush (D-IL) on November 1, 2007, and passed unanimously on December 19, 2007. S.2663 and H.R.4040 await conference committee action.

Core Provisions: This legislation would amend ERISA to require group health plans to administer treatment limitations, beneficiary financial requirements and out-of-network coverage so that mental health benefits are no more restrictive than “substantially all medical and surgical benefits.” This amendment would not apply to group health plans of employers with fewer than 50 employees.

Status: On February 12, 2007, the bill was introduced by Sen. Domenici (R-NM). On September 18, 2007, the Senate passed S.558, and it was referred to the House HELP Subcommittee on October 17, 2007. On March 5, 2008, the White House released a statement urging passage of S.558, because the bill “strikes the necessary balance of treating mental illness with the same urgency as physical illnesses without significantly increasing health care costs.”

Core Provisions: This legislation would amend the Employee Retirement Income Security Act of 1974 (ERISA) and the Public Health Service Act to prohibit group health plans from treating mental health or substance-related disorders differently than other health conditions in terms of treatment limitations, beneficiary financial requirements and out-of-network coverage. The bill specifies that plans must cover treatment for any mental health condition or substance-related disorder included in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. This amendment would not apply to group health plans of employers with fewer than 50 employees. Provisions from the Genetic Information Nondiscrimination Act (H.R.493), which was passed by the House but not yet acted upon by the Senate, were added to H.R.1424 following passage in the House. The provisions added to this act would prohibit employers from discriminating against individuals on the basis of genetic information, limit genetic testing and information collection by insurers, and prohibit insurers from using genetic information to determine eligibility, premium rates or preexisting condition coverage exclusions.

Status: On March 9, 2007, the bill was introduced by Rep. Kennedy (D-RI). On March 5, 2008, the House passed H.R.1424 by a vote of 268 to 148. On March 5, 2008, the White House released a statement expressing concerns about H.R.1424 and urging Congress to pass S.558 instead. The White House opposes H.R.1424’s preemption provisions and its application to physician-owned hospitals, and is concerned the legislation would “further distort the market for prescription drugs, and discourage innovation in the drug development process.” The White House also expressed concern about H.R.1424’s provisions from the Genetic Information Nondiscrimination Act, but concluded that “the Administration looks forward to working with Congress to address these concerns and pass Mental Health Parity and Genetic Nondiscrimination legislation this year.”

On February 26, 2008, the National Labor Relations Board proposed a rule that would allow a new type of “consent” election procedure for a Board-conducted election.

The new rule would permit an employer and a labor organization to file a petition jointly for certification consenting to an election. In contrast to the other voluntary and non-voluntary election procedures, which require at least a 30 percent showing of employee interest, this proposed rule requires no showing of interest among employees.

The petition would provide the election date, place and hours; a description of the parties’ agreed-upon appropriate bargaining unit; the payroll period for voting eligibility; and the full names and addresses of employees eligible to vote in the election. The proposed election date must be within 28 days from the petition filing date. If the petition lacks any necessary information, the regional director will advise the parties and request that the petition be corrected.

Within three days of the docketing of the petition, the regional director will advise the parties of his or her approval of the petition. Absent “extraordinary circumstances,” the parties’ agreement as to date, place and time of the election will be approved. Within three days of docketing, the regional director will also send to the employer official NLRB notices to post in conspicuous places informing employees of the joint petition for certification and the date, place and time of election. The employer must also post copies of the Board’s official Notice of Election in conspicuous places at least three full working days prior to the day of the election.

Unfair labor practice charges would not block the election, but would be handled in conjunction with any post-election proceedings. All election and post-election issues would be resolved by the regional director, with no appeal to the Board.

All written comments must be received by the Board on or before March 27, 2008. Comments should be sent to the Office of the Executive Secretary, National Labor Relations Board, 1099 14th Street, NW, Room 11600, Washington, DC 20570-0001.

The Equal Employment Opportunity Commission (EEOC) has issued two question-and-answer guides on workplace issues affecting veterans with service-connected disabilities. The two guides, one directed to employers and the other to disabled veterans, explain differences between the two laws protecting veterans with service-connected disabilities: the Americans with Disabilities Act (ADA), enforced by the EEOC, and USERRA, enforced by the DOL. For instance, while both laws include reasonable accommodation provisions, the EEOC notes that USERRA goes further than the ADA by requiring employers to make reasonable efforts to assist a veteran returning to the workplace in becoming qualified for a job. Both guides are available on the agency’s Web site at http://www.eeoc.gov/.