On August 19, 2008, OSHA published a proposed rule designed to clarify that noncompliance with the personal protective equipment and training requirements in the general industry, construction, and maritime standards will expose employers to liability and penalties on a per-employee basis. Currently, an employer may receive one penalty for failure to train or provide personal protective equipment for multiple employees. Under this proposed rule, an employer could receive a separate penalty for each employee. The proposed rule, however, does not add any new compliance obligations for employers with respect to providing new equipment or training programs. It simply changes the liability risk for any failure to comply with existing regulations.In particular, the proposed rule makes two significant changes to the existing regulations.

• Introduces an identical new section in Parts 1910, 1915, 1917, 1918, and 1926, “Compliance duties owed to each employee” (§§1910.9 ,1915.9, 1917.9, 1918.9, and 1926.20(f)), clarifying that employers have separate compliance duties for each employee with respect to personal protective and training requirements.
• Revises training provisions in the general industry, construction, and maritime standards that require employers to institute or provide a training program for “all employees” to require employers to train “each employee.”

OSHA has also asked for public comments in connection with this proposed standard. The comment period will remain open until September 18, 2008. Comments may be submitted in three ways:  1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/, 2) send three copies to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) fax the comments to 202-693-1648. Comments must include the Agency name and Docket Number for this rulemaking:  OSHA-2008-0031.

On August 21, 2008, the Employee Benefits Security Administration (EBSA) announced two proposed rules making investment advise more accessible for participants in 401(k) plans and individual retirement plans (IRAs).

Congress passed the Pension Protection Act (PPA) in 2006, amending the Employee Retirement Income Security Act (ERISA).  The PPA added a new prohibited transaction exemption that allows greater flexibility for participants of 401(k) plans and IRAs to obtain investment advice. Under the exemption, advice may be given through an unbiased computer model or through an adviser compensated on a flat-fee basis.  Furthermore, advisors must disclose their fees.

The proposed regulation provides guidance on certifying the unbiased computer models and provides a model form that advisors can use to disclose their fees.

EBSA is also proposing a class exemption from ERISA’s prohibited transactions rule allowing advisors to give individualized advice to participants after giving advice generated by use of a computer model.

Written comments on the proposed regulation should be received by the Department of Labor on or before October 6, 2008. To submit comments electronically, email e-ORI@dol.gov, or use the Federal eRulemaking portal at http://www.regulations.gov/.  Interested parties may also send comments to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Attn: Investment Advice Regulations, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.

Core Provisions: The CARE Act would amend the Fair Labor Standards Act (”FLSA”) to (1) narrow the exemption for agricultural work to the employment of children working on their families’ farms; (2) increase civil penalties for child labor violations; (3) impose special criminal penalties for aggravated child labor violations; (4) require the Secretary of Labor to gather and analyze data on work-related injuries to children employed in agriculture; (5) impose additional employer reporting requirements for work-related injuries for employees who are minors; and (6) incorporate a pesticide-related worker protection standard.

Status: Rep. Roybal-Allard (D-CA) introduced H.R. 2674 on June 12, 2007, and it was referred to the House Committee on Education and Labor.  The legislation was referred to the Workforce Protections Subcommittee on July 24, 2007.

Core Provisions: This legislation would amend the Internal Revenue Code to make wages and benefits paid to unauthorized aliens nondeductible for federal taxation purposes. There would be a six-year limitation on assessments under the new provision. The legislation includes a safe harbor provision for employers who comply with the terms of the E-Verify program and obtain confirmation of the identity and employment eligibility of the employee at issue. The legislation would also require the Secretary of the Treasury to work with the Commissioner of the Social Security Administration and the Secretary of the Department of Homeland Security by disclosing the taxpayer identity information of employers whose deductions for wages for ineligible workers were denied, and the taxpayer identity information of the corresponding ineligible workers.

Status: Rep. King (R-IA) introduced H.R. 6813 on August 1, 2008, and it was referred to the House Ways and Means, Judiciary, and Education and Labor Committees.

Core Provisions: H.R. 6799 would amend the Internal Revenue code to provide for unemployment savings accounts that would be treated like IRAs for tax purposes. Although workers could contribute to these accounts to protect them during periods of unemployment other than following termination for gross misconduct, this legislation would not diminish an employer’s obligation to pay state or federal unemployment taxes or reduce an individual’s entitlement to unemployment benefits. Employees would be limited to annual contributions of $5,000 (indexed to inflation) and employers could provide matching contributions up to the full amount of the employee’s contribution. Once an account-holder begins receiving Social Security retirement benefits, the individual would be prohibited from making any more contributions to the Worker Savings Account (WSA), but would be able to rollover WSA funds into an IRA or 401(k) plan.

Status: Rep. McHugh (R-NY) introduced the Worker Savings Account Act of 2008 on August 1, 2008, and it was referred to the House Committee on Ways and Means.

Core Provisions: This legislation would direct the Secretary of Labor to establish a program to make grants to states to assist employers in providing incumbent worker training. The federal government’s share of the costs would top out at 50 percent. Grant funds could not be used to pay wages or lost revenue connected with the incumbent worker training, and could not fund training to prepare the employee to assume the responsibilities associated with the job that the employee holds with the employer.

Status: Rep. Kagen (D-WI) introduced H.R. 6797 on August 1, 2008, and it was referred to the House Committee on Education and Labor.

On July 31, 2008, Sen. Tom Harkin (D-IA) introduced bipartisan legislation (S. 3406) amending the Americans with Disabilities Act (”ADA”). Like H.R. 3195, a similar bill which passed the House of Representatives on June 25, the legislation responds to three U.S. Supreme Court decisions that have narrowed the scope 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. S. 3406 continues the “substantially limits” requirement, considering “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions” as “major life activities” under the bill. For the “regarded as” category, the bill would exempt minor impairments and impairments lasting six months or fewer as outside the scope of coverage.

S. 3406 purports to return the ADA to its original scope as intended by Congress, and requires courts to consider “mitigating measures” when determining whether an individual is “disabled” under the ADA. In rejecting Supreme Court precedent, the bill specifically prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual is disabled.  However, S. 3406 does permit consideration of standard vision correction achieved through normal glasses or contact lenses. 

A bipartisan majority of the Senate has already signed on to co-sponsor S. 3406 and the bill has drawn support from disability rights activists as well as the business community, including the Chamber of Commerce. The Senate is expected to take up the bill in September following its summer recess. If enacted, the ADA Amendments Act would go into effect on Jan. 1, 2009.

Core Provisions: This legislation is intended to prohibit activities that assist, encourage, direct or induce unauthorized aliens to reside in the United States. Among many other provisions, the LEAVE Act would make the E-Verify system permanent and would mandate verifying work eligibility of new hires using E-Verify. Employers of more than 250 individuals, certain federal contractors and subcontractors, and federal agencies would be required to verify the eligibility of new hires within one year of enactment, with other employers being phased into the requirement two to four years after enactment. All employers would also be required to use E-Verify to confirm eligibility of all current employees by four years after enactment. An employer would not be liable for hiring an unauthorized alien if the hiring was due to an unknown E-Verify error as long as the employer terminated the unauthorized alien upon being informed of the error.

The LEAVE Act would also require the Commissioner of Social Security to notify employers annually of employees whose Social Security numbers do not match their name or date of birth in the Commissioner’s records, and the employer would then have 30 days to correct the mismatch or terminate the employee. The Commissioner would also monitor employment-based information for indicia of identity theft, such as an individual with concurrent earnings from more than one employer over an extended period.

The legislation also includes provisions in many different areas intended to deter illegal immigration and better enforce existing immigration laws. These include provisions protecting “identity security,” prohibiting residential mortgages and rentals to illegal aliens, denying Social Security credit for individuals who were unlawfully present at the time of the work, prohibiting illegal aliens from obtaining financial services, and increasing border and law enforcement efforts.

Status: Rep. Miller (R-CA) introduced the LEAVE Act on August 1, 2008 and it was referred to the House Judiciary, Oversight and Government Reform, Education and Labor, House Administration, Financial Services, Ways and Means, and Homeland Security Committees.

Core Provisions: This legislation would amend the Immigration and Nationality Act to require the Secretary of Homeland Security (”Secretary”) to establish and administer a secure electronic system to verify employment eligibility using individuals’ Social Security numbers. Employers would be required to verify employment eligibility for all new hires. For most employers, verification of the eligibility of existing employees would be required within six years of enactment of the legislation, but verification of existing employees would be required within three years of enactment for federal, state, and government employers, and for employers of individuals working in a government building, military base, nuclear energy site, airport, or other “critical infrastructure” employers.

The verification system would provide verification or a tentative nonverification of an individual’s identity and employment eligibility within three working days. In the cases of tentative nonverification, a secondary process would provide a final eligibility determination within ten working days of the tentative nonverification. Where there is a final nonverification, the employer would be required to terminate the individual and provide the Secretary with any information that would be helpful in the enforcement or administration of immigration laws. If an employer received a tentative nonverification notice, the employer would be required to inform the individual in writing within three days. An individual would then have ten days to contest the nonverification. An employer may not terminate an individual based on a tentative nonverification unless the individual does not contest the eligibility determination within ten days or the individual refuses to acknowledge receipt of the notice of their tentative ineligibility.

An employee who is terminated from employment as a result of a final nonverification notice would be able to file an appeal within 60 days. If the Secretary determined the final nonverification was erroneous due to no act or omission of the individual, the Secretary would compensate the individual for lost wages from the Employment Verification Compensation Fund, which would be funded by fines and penalties assessed against violators.  An individual would be able to appeal a final determination in the administrative review process within 60 days in federal district court.

Continuing to employ someone after receiving a final nonverification would create a rebuttable presumption of a statutory violation.  Failing to use the employment eligibility system as required by the legislation would be treated as a violation of the Immigration and Nationality Act’s prohibition against knowingly hiring an unauthorized worker. The legislation would provide employers with a defense if they submitted a verification request in a timely fashion, but the verification system did not respond in a timely manner.

The legislation would raise the fines and other criminal penalties for violations.  In determining the amount of a penalty, the size of the employer would be removed as a consideration, but the legislation adds a provision mitigating civil money penalties for smaller employers.

Contractors would be liable for hiring or employing an unauthorized alien through a subcontractor unless the contractor verified through the eligibility verification system that all subcontractor employees were eligible. An employer classified as a “repeat violator” by the Secretary would be debarred from receiving federal contracts, grants, or cooperative agreements for five years. Subcontractors and labor brokers that engaged in a pattern or practice of violations would face heightened criminal penalties.  The Department of Homeland Security would be required to create and maintain a publicly available online database of contractors and subcontractors that would disclose the number of employment eligibility violations, employment eligibility verification rejections, and the total number of verification attempts made by each entity.

The legislation would require several reports to the Inspector General and to Congress about elements of the proposed revised employment eligibility verification system, which would examine cost and administrability and the potential effects on employers, employees (citizens and non-citizens), tax revenue, and privacy.

Status: On August 1, 2008, Rep. Marshall (D-GA) introduced the Electronic Employment Eligibility Verification and Illegal Immigration Control Act of 2008, which was referred to the House Judiciary, Ways and Means, and Education and Labor Committees.

In concert with the House’s recent passage of legislation extending the E-Verify employment verification program (H.R. 6633) and a House subcommittee’s vote to move forward on visa recapture legislation (H.R. 5882), Sen. Robert Menendez introduced the Visa Efficiency and E-Verify Extension Act of 2008 (S. 3414) on July 31, 2008.

S. 3414’s E-Verify provisions are identical to H.R. 6633, which passed the House by a vote of 407-2 on July 31.  The bill extends the E-Verify employment verification pilot program by five years.  The voluntary program allows employers to check the employment status of new hires online and verify their Social Security numbers.  Absent an extension, the program was slated to expire in November 2008.  The E-Verify provisions also authorize two General Accountability Office studies concerning the program’s effect on small business and on erroneous “no-matches”.  The bill further provides that the Social Security Administration’s administrative costs from oversight of the program be reimbursed by the Department of Homeland Security.

S. 3412 additionally includes visa recapture provisions identical to those in H.R. 5882, which the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law approved at a July 31 markup session. These provisions would recapture employment-based and family-based immigrant visas that went unused between fiscal year 1992 and fiscal year 2007 due to bureaucratic delays.  Going forward, the bill would also roll over unused visas into the following fiscal year.

S. 3414 also extends the Conrad State 30 program, which provides every state with 30 annual J-1 visa waivers for foreign medical graduates.