Core Provisions: This bill would require courts to grant injunctive relief, when appropriate, to Uniformed Services Employment and Reemployment Rights Act (USERRA) claimants. The bill seeks to address a recent Seventh Circuit ruling (Bedrossian v. Northwestern Mem’l Hosp., 409 F.3d 840 (7th Cir. 2005)), which required a claimant to show irreparable harm to obtain an injunction against termination.      

Status: H.R. 6225 was introduced in the House by Rep. Stephanie Herseth Sandlin (D-SD) on June 10, 2008, and referred to the House Veterans’ Affairs Committee. A hearing was held on the bill on June 19, 2008.

On June 18, 2008, following a morning markup session, the House Committee on Education and Labor passed the ADA Amendments Act of 2008 (H.R. 3195) out of committee by a vote of 43-1, advancing the bill to the House floor. In January 2008, the Committee held a hearing on H.R. 3195 (previously the “ADA Restoration Act of 2007″), which clarifies the legislative intent of the ADA in the face of court decisions limiting its scope. A relatively broad base of Congressional support exists for the bill.

The ADA Amendments Act of 2008 responds to three U.S. Supreme Court decisions requiring courts to consider “mitigating measures” when determining whether an individual is “disabled” under the ADA. The bill specifically rejects these decisions, prohibiting the consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled. Both Chairman Miller (D-CA) and Rep. McKeon (R-CA), the Committee’s ranking Republican, applauded this provision, which they claim restores the original intent of the ADA.

The ADA Amendments Act does not include a previously-considered provision removing the ADA’s requirement that a disability “substantially limit” an individual’s ability to perform “major life activities.” Many members of Congress and the public have criticized eliminating this language, arguing that doing so would allow for a wide range of relatively minor impairments to be included under the ADA’s umbrella. Rep. McKeon supported the removal of this provision as achieving a necessary balance, allowing the bill to restate the broad scope of the ADA without trivializing its protections. Chairman Miller described the ADA Amendments Act as a “compromise,” recognizing that many advocates for the disabled might find the bill does not go far enough, while emphasizing the importance of strengthening the ADA through its passage.

Rep. Price (R-GA) and Rep. Kuhl (R-NY) expressed concern over the bill’s extended definition of what it means to be “substantially limited” in a “major life activity.” Both stated that by containing a comprehensive list of what qualifies both as a “substantial limitation” and a “major life activity,” the bill might exclude certain groups of disabled individuals while also leading to further litigation and interpretation by the courts. Rep. Andrews (D-NJ) countered that such specificity intentionally limits the purview of the courts and suggested that the previously broad language of the ADA had allowed courts to limit its scope. Rep. Andrews also emphasized that the bill does not prevent other unnamed impairments from falling under the scope of the ADA.

Some members voiced concern with the Committee’s haste in pushing the legislation forward. Rep. Price stated that fast-tracking the bill had not provided an opportunity to “soberly” evaluate its language. Rep. Hinojosa (D-TX) disagreed, joined by Rep. Andrews, Rep. McCarthy (D-NY) and Rep. Davis (D-CA), all emphasizing the importance of moving this legislation after years of allowing courts to limit the ADA’s reach. Chairman Miller pointed to Congress’s opportunity to refine the bill’s language as it advances through the legislative process.

On June 10, 2008, House Republican leaders introduced the Green Jobs Improvement Act (H.R.6220). If passed, the bill would amend recently enacted legislation to make non-union training programs eligible for federal funding under the “Green Jobs” program. 

The Green Jobs Act, authorized under the 2007 Energy Independence and Security Act, created the Green Jobs program, which provides funding for energy efficiency and renewable energy worker training programs. The law currently restricts participation in the Green Jobs program to entities that partner with labor organizations. The proposed legislation would remove this eligibility requirement, opening the energy-oriented training funding to a broader range of employers and training partners. Under the proposed language, the scope of participation would include “industry and may include workforce investment boards, community-based organizations, qualified service and conservation corps, educational institutions, small businesses, public employers, cooperatives, State and local veterans agencies, veterans service organizations, and labor organizations, including joint labor-management training programs.”

Rep. John Kline (R-MN) offered the bill, which was referred to the House Committee on Education and Labor. As of June 18, 2008, all 38 of the bill’s co-sponsors are Republicans.

On June 12, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law held a hearing on the need for green cards for highly skilled workers. The testimony focused on two major sectors: science, technology, engineering and mathematics (STEM) and nursing.

Most of the STEM testimony focused on three bills introduced by Rep. Lofgren (D-CA) that attempt to alleviate the shortage of STEM employees. H.R.5882 would attempt to recapture employment-based visas lost to bureaucratic and processing delays. The High Skilled Per Country Level Elimination Act (H.R.5921) would remove the country limits on employment-based admissions. H.R.6039 would exempt foreign students who have earned STEM graduate degrees in the United States from the cap on employment-based visas.

Edward Sweeney, Senior Vice President of the National Semiconductor Corporation, and Lee Colby, Past Chair of the Institute of Electrical and Electronic Engineers Santa Clara Valley Section, both testified in support of all three proposals. The two industries have found common ground on this issue because of the lack of qualified STEM employees, due in part to the immigration system. STEM employees are crucial because they create jobs in other sectors, a point noted by Rep. Lofgren.

In support of H.R.6039, John Pearson, Director of Bechtel International Center at Stanford University, reported that the United States was losing in the global competition to attract STEM employees. Responding to questioning by Rep. Lofgren, Pearson stated that the United States should improve the education of Americans in addition to allowing more foreigners the opportunity to work in the United States. 

Mark Krikorian, Executive Director of Center for Immigration Studies, expressed skepticism about the need for more high-skilled workers, proposing that only aliens of extraordinary ability and outstanding researchers and professors (employment-based categories 1 and 2) should receive visas. Rep. King (R-IA) agreed with Krikorian that unlimited immigration should not occur, but pointed out that the reason some foreign STEM workers get paid average wages is in part due to immigration restrictions made on them.

Rep. Goodlatte (R-VA), Rep. Smith (R-TX) and Rep. King all endorsed the idea of immigration reform to allow for more employees in certain sectors, although all three warned of the need for limitations on immigration. Rep. Gutierrez (D-IL), however, asserted that there must be a holistic approach to immigration reform, which should include both the STEM employee as well as the temporary farm worker.

Rep. Conyers (D-MI), Rep. Gutierrez and Rep. Lofgren emphasized that the need for nurses will only increase as the baby boom generation gets older. Jana Stonestreet, Chief Nursing Executive of Baptist Health System testified in favor of the Emergency Nursing Supply Relief Act (H.R.5924) which would provide additional visas for nurses. In response to questioning by Rep. Lofgren, Cheryl Peterson, Senior Policy Fellow of the American Nurses Association (ANA), stated that although the ANA would not oppose H.R.5924, it did not believe immigration will solve the 10-year nursing shortage. Both Rep. Lofgren and Rep. Jackson-Lee (D-TX) expressed their party’s desire to find solutions for both immigration reform and the nursing shortage.

On June 12, 2008, by a margin of 274-137, House Democrats passed the Emergency Unemployment Compensation Act of 2008 (H.R. 5749) on June 12, 2008 with the support of 49 Republicans, but the vote fell short of a two-thirds veto-proof margin. The legislation provides jobless workers who have exhausted their benefits with 13 additional weeks of benefits. Further, the bill provides for additional 13-week extensions to workers in states with the highest rates of unemployment, including Michigan and California.

House Democratic leadership expedited the bill under a motion to suspend the rules (requiring a two-thirds majority) on June 11, following the release of the May unemployment numbers by the U.S. Department of Labor. The bill fell three votes short of supermajority passage, failing 277-144, but Democrats were able to bring up the bill for a second vote on June 12 under normal majority rules.

The Bush Administration has indicated it will veto the legislation, citing its cost and nationwide coverage, including states with low unemployment rates. Republicans have also objected to a provision of the bill removing the requirement that employees work 20 weeks to qualify for benefits, claiming the removal of the requirement opens the door for fraud.

The bill now advances to the Senate for consideration. House leaders have acknowledged that final passage remains unlikely in light of the veto threat and indications by Senate Democrats that they might not bring the bill to the floor if faced with intense Republican opposition. Rather, Senate Democratic leadership intends to include the extension of unemployment benefits in Iraq and Afghanistan war supplemental spending bills.

Both prospective presidential nominees, Sen. John McCain (R-NV) and Sen. Barack Obama (D-IL), have indicated support for unemployment benefit extensions.

Core Provisions: These bills would provide full federal funding to state governments to temporarily extend unemployment benefits to qualifying out-of-work individuals. Such workers qualify for benefits when they have exhausted current benefits after filing an initial jobless claim in the past year. Under the bills, unemployment benefits would be extended by an additional 13 weeks to workers who exhausted their benefits, with additional 13-week extensions available in states with higher rates of unemployment.

Status: H.R. 4934 was introduced in the House by Rep. McDermott (D-WA) on January 15, 2008, and referred to the House Committee on Ways and Means. Rep. McDermott introduced H.R. 5749 on April 9, 2008. H.R. 5749 was also referred to the House Ways and Means Committee and was approved by the Committee by a vote of 23-13 on April 16, 2008.  S. 2544 was introduced by Sen. Kennedy (D-MA) on January 22, 2008, and referred to the Finance Committee. A hearing on issues related to the bill was held on March 6, 2008, before the Senate HELP Committee. In order to circumvent “pay-go” rules, the extension of unemployment benefits was attached to the Iraqi war supplemental bill in the House (H.R. 2642) by a vote of 256-166 on May 15, 2008. The Senate Appropriations Committee, by voice vote, approved similar language on May 15. H.R. 5749, a stand-alone bill extending benefits, passed the House by a vote of 274-143 on June 12, 2008 and proceeded to the Senate for evaluation. The Bush Administration has threatened to veto the stand-alone bill.

On June 10, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing on “Electronic Employment Verification Systems: Needed Safeguards to Protect Privacy and Prevent Misuse.” Most of the testimony concerned the current E-Verify system, and the provision in the proposed Secure America Through Verification and Enforcement Act (”SAVE Act”) (H.R. 4088) that would make employer participation in the E-Verify program mandatory. Administered in part by the Department of Homeland Security (DHS), the E-Verify system requires employers to submit employees’ Social Security numbers and identifying information. Where employees’ information is not consistent with Social Security Administration (SSA) records, employees have ten days to correct the mismatch, or the employer is required to terminate the employee.

Rep. Shuler (D-NC) and Rep. Calvert (R-CA) testified in favor of extending the E-Verify program. In response to critics of widespread mandatory implementation of the program, Rep. Shuler noted that E-Verify is currently required by law to varying degrees in Arizona, Colorado, Georgia, Idaho, Minnesota, Mississippi, North Carolina, Oklahoma, and Utah, and has been largely a success. Glenda Wooten-Ingram, an experienced Director of Human Resources at hotels in the Washington D.C. area, praised E-Verify for making it easier for employers to verify quickly and inexpensively employee work eligibility, and to deter ineligible job applicants. Jonathan Scharfen, acting director of U.S. Citizen and Immigration Services, testified in favor of E-Verify, and described recent improvements to the system. However, when questioned by Committee Chairman Conyers (D-MI), Scharfen admitted that the program only rarely results in prosecutions against employers for knowingly hiring illegal immigrants.

Carolyn Shettle, Senior Study Director at Westat, testified about the results of its study of the E-Verify program, which was commissioned by U.S. Citizenship and Immigration Services. Shettle reported that common types of employer noncompliance include using E-Verify to screen job applicants, and taking prohibited adverse actions against employees while they are contesting preliminary mismatches by, for example, restricting work assignments or delaying training.  Westat’s recommendations for improving E-Verify include addressing the fact that work-authorized foreign-born workers are significantly more likely to receive tentative non-confirmations than U.S.-born workers.

Witnesses who testified against extending the E-Verify program included Christopher Williams, Director of the Working Hands Legal Clinic, and Timothy Sparapani, Senior Legislative Counsel of the American Civil Liberties Union, both of whom cited Westat’s findings as evidence of E-Verify’s flaws. Williams emphasized E-Verify’s “unacceptably high error rates,” and employer non-compliance with program rules. Sparapini asked Congress to block any proposal for mandated employment eligibility verification that does not adequately provide workers with a “fair and just set of administrative and judicial procedures to resolve data errors promptly and efficiently.”

Rep. Johnson (R-TX) and Rep. Giffords (D-AZ) testified in favor of competing legislation, the New Employee Verification Act of 2008 (”NEVA”) (H.R. 5515), which would provide an alternative electronic verification system. Rep. Johnson testified that it is inappropriate that DHS, an agency responsible for tracking terrorists, maintains E-Verify databases on the employment histories of U.S. citizens, especially when SSA has always had the responsibility to track the earnings of American workers. Rep. Johnson asserted that the NEVA electronic verification system “builds upon the lessons learned from E-Verify,” and noted that his legislation is supported by employer groups including the National Association of Manufacturers, Society for Human Resource Management, National Association of Home Builders, and National Federation of Independent Business.

On June 6, 2008, President Bush amended Executive Order 12989 to direct all federal departments and agencies to require contractors to agree to use an electronic employment eligibility verification system to verify the employment eligibility of (i) all people hired during the contract term by the contractor to perform employment duties within the United States and (ii) all persons assigned by the contractor to perform work within the United States on the federal contract. Executive Order 12989 does not address whether or not subcontractors also will be required to use E-Verify, but the order does grant rulemaking authority to the Department of Homeland Security (DHS). 

At a press conference on June 9, DHS Secretary Michael Chertoff designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use for compliance with Executive Order 12989, as amended. E-Verify is operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration. Federal departments and agencies are already enrolling with E-Verify to check the status of all new hires within the federal workforce.

On June 9, agencies responsible for federal acquisition regulations (FAR) sent a Notice of Proposed Rulemaking to the Federal Register to solicit public comment for 60 days on proposed changes to the FAR. The FAR will be amended to the extent necessary to “implement the debarment responsibility, the employment eligibility verification responsibility, and other related responsibilities.”