Core Provisions: The bill, known as the “RAISE Act”, would amend the National Labor Relations Act to provide that an employer does not commit an NLRA unfair labor practice or violate the terms of a collective bargaining agreement by paying its employees greater wages, pay, or other compensation than provided for in the applicable collective bargaining agreement.  Thus, the bill would effectively establish that wage scales contained in collective bargaining agreements represent a floor, but not a ceiling, for bargaining unit employee pay. 

Status: Rep. Rep. Tom McClintock (R-CA) introduced the bill on June 4, 2009, and it was referred to the House Committee on Education and Labor that same day.

Core Provisions: This legislation provides for four weeks of paid leave for federal employees in connection with the birth or placement of a child for adoption or foster care. Specifically, the bill provides that for any of the twelve weeks of leave an employee is entitled to for these purposes, a federal employee may substitute four weeks of paid parental leave and any accumulated annual or sick leave.

The bill also authorizes the Director of Personnel Management to promulgate regulations to increase the amount of paid parental leave to a total of eight weeks based on the consideration of (1) the benefits provided to the federal government of offering increased leave, including enhanced recruitment and retention; (2) the cost to the federal government; (3) trends in the private sector; (4) the federal government’s role as a model employer; and (5) the impact of increased paid leave on lower-income and economically disadvantaged employees and their children.

Status: H.R. 626 was introduced by Rep. Maloney (D-NY) on January 22, 2009 and passed the House on June 4, 2009 by a vote of 258-154.

Core Provisions:  This legislation would extend the federal government’s electronic employment verification pilot program, E-Verify, until September 30, 2014. E-Verify is an Internet-based tool that allows employers, on a voluntary basis, to check the employment status of new hires and verify their Social Security number, protecting against undocumented labor and identification theft.Under this bill, the Social Security Administration’s costs in administering the program are reimbursed by the Department of Homeland Security. Participation in the program remains voluntary under the bill. The legislation also authorizes two studies by the General Accountability Office: examining the program’s effect on small businesses and on erroneous “no-matches”.

Status: H.R. 2679 was introduced by Rep. Gabrielle Giffords (D-AZ) on June 3, 2009 and referred to the Committees on the Judiciary, Education and Labor, and Ways and Means. A similar bill passed the House in the 110th Congress by a vote of 407-2, but did not make it out of committee in the Senate.

On June 2, 2009, the federal government announced a fourth delay in the rule requiring the use of the E-Verify system, postponing the expected rollout date to September 8, 2009.The final rule, arising out of Executive Order 12989, was originally scheduled to take effect on January 15, 2009. The rule was initially postponed in January in response to a lawsuit filed by the U.S. Chamber of Commerce (Chamber of Commerce of the United States of America v. Chertoff, D. Md. No. 8:08-cv-3444) in the U.S. District Court for the District of Maryland challenging the legality of the rule.

On June 2, the district court granted a motion to extend a stay currently pending in the case to postpone implementation of the rule until August 2009. The federal government has postponed implementation of the rule three additional times since the initial January postponement in response to the lawsuit to allow the Obama Administration the opportunity to review the rule prior to its implementation.

E-Verify is an internet-based system administered by USCIS, in partnership with the Social Security Administration, that allows employers to verify employees’ work eligibility. The system is currently voluntary. Once implemented, the regulation will require all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, to verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985. The system has come under criticism for providing erroneous eligibility results that may occur due to changes in name or citizenship status, or simple data-entry errors, among other reasons.

On May 28, 2009, the U.S. Department of Labor’s Employment and Training Administration (ETA) announced a nine-month suspension of the new H-2A labor certification regulations. The final rule on the new regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations and the enforcement of contractual obligations of the employers of such workers. Notice of the suspension was published in the Federal Register on May 29, 2009.

For the nine-month suspension period, DOL will reinstate the H-2A regulations that were in place on January 16, 2009, prior to the new rule taking effect. The suspension is intended to provide DOL with an opportunity to review and consider the requirements of the new rule “to ensure that it effectively carries out the statutory objectives and requirements of the [H-2A visa] program in a manner that minimizes disruption” to the department. By the end of the nine-month period, the department will either have engaged in new rule-making or will lift the suspension.

Suspension of the final rule is in response to concerns that have been raised about the new regulations. Following the issuance of the H-2A final rule, a lawsuit was filed on January 12, 2009 in the U.S. District Court for the District of Columbia challenging the final rule (United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062RMU). The lawsuit, brought by the United Farm Workers and others, asserted that the final rule violated section 218 of the Immigration and Nationality Act and the Administrative Procedure Act. District Court Judge Ricardo Urbina denied plaintiffs’ request for a temporary restraining order and preliminary injunction, and rejected plaintiffs’ arguments that the new regulations would cause irreparable harm. Plaintiffs have since filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit.

In addition, to the lawsuit, DOL has concerns that the Department and the State Workforce Agencies (SWAs) lacked sufficient resources (e.g., automated system, training, staffing) to effectively and efficiently implement the rule at the current time. The Department wants to ensure that the regulatory scheme has a sound basis prior to implementation. To avoid disruption in agricultural production, sales and market conditions, particularly during the current economic environment, DOL has suspended the new regulations and reinstated the previous regulations to ensure stability while the rule is under review.

Employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States for agricultural work on a temporary or seasonal basis. Under the new regulations, employers would have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4) recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment. Finally, employers were to submit a job order to the applicable SWA.

On May 29, 2009, the Wage and Hour Division (WHD) released a memorandum to all federal agencies and the District of Columbia regarding federal and federally-assisted construction work funded in whole or in part by the American Recovery and Reinvestment Act (ARRA). Currently, the Davis-Bacon Act requires that each contract over $2,000 for the construction, alteration, or repair of public buildings or public works to which the United States or the District of Columbia is a party must include a provision stating the minimum wages laborers and mechanics are paid. The Secretary of Labor determines the prevailing wages for the corresponding classes of laborers and mechanics employed on projects.

Section 1606 of the ARRA indicates that the Davis-Bacon prevailing wage requirement broadly applies to ARRA-funded construction projects. Projects receiving such funding must follow the requirements located in the DOL regulations at 29 C.F.R. Parts 1, 3 and 5. This provision explicitly overrides any limitation to Davis-Bacon coverage contained in other Davis-Bacon related Acts. Thus, even if a construction project receives funding from multiple statutes, the ARRA prevailing wage requirement governs if the project receives ARRA funding. 

Section 1606 of the ARRA does not apply to the following contracts: (1) tribal contracts with the Bureau of Indian Affairs involving repair and restoration of roads, school improvements, repairs and replacement construction, and detention center maintenance; (2) tribal contracts with the Department of Health and Human Services, Indian Health Services involving Indian health facilities construction projects; and (3) contracts receiving project-based rental assistance funding from the Department of Housing and Urban Development.

The WHD provides additional information for construction projects receiving ARRA funding on its website.