Core Provisions: The Secure America through Verification and Enforcement Act (”SAVE Act”) would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to make employer use of the E-verify program mandatory.  E-verify is an internet-based system that allows employers to verify employees’ work eligibility, but the system has been criticized for providing erroneous eligibility results due to name changes, citizenship status changes, and other data-entry or data processing errors.  

The legislation phases-in mandatory use of e-verify, requiring immediate use of E-verify by federal agencies, federal contractors, and employers that employ more than 250 individuals in the United States.  Within four years of its passage, the bill would require all employers to confirm the employment eligibility of newly hired and current employees through E-verify. 

On July 8, the Senate approved an amendment to the 2010 homeland security appropriations bill that would make E-Verify permanent and would also require all federal contractors to use E-Verify beginning September 8, 2009.

Status: S. 1505 was introduced by Senator Mark Pryor (D-A.R.) on July 23, 2009 and referred to the Senate Committee on Finance.  A comparable bill H.R. 3308 was introduced in the House by Representative Heath Shuler (D-N.C.) on the same date and referred to the House Committee on Homeland Security, and in addition to the Committees on the Judiciary, Ways and Means, Education and Labor, Oversight and Government Reform, Armed Services, Agriculture, and Natural Resources.  Similar legislation, S.2368 was introduced by Senator Pryor during the 110th Congress on November 15, 2007.  That legislation was referred to the Senate Committee on Judiciary, but failed to make it out of committee.

On July 28, 2009, President Barack Obama announced his intent to nominate Dr. David Michaels as the Assistant Secretary of Labor for the Occupational Safety and Health Administration. The Assistant Secretary of Labor is responsible for developing and enforcing OSHA regulations regarding workplace safety and health, as well as issuing interpretative guidance and opinion letters to assist employers in their compliance efforts with these regulations.  

Michaels currently serves as a Research Professor at the Department of Environment and Occupational Health at the George Washington University School of Public Health and Health Services. Prior to this role, Michaels served as Assistant Secretary of Energy for Environment, Safety and Health, where he was responsible for protecting the safety and health of workers around nuclear weapons facilities. In this position, he was the chief architect of an initiative to compensate workers who developed occupational illnesses from exposure to radiation, beryllium and other hazards. 

The White House has not yet indicated when President Obama’s final nomination will be announced.

Core Provisions: This Act provides that Federal courts shall dismiss complaints under Rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure only in accordance with the standards articulated by the 1957 Supreme Court decision in Conley v. Gibson. The Act seeks to overturn recent Supreme Court decisions heightening the pleading standard civil complaints must meet to survive a motion to dismiss. In 2007, the Court held in the antitrust action Bell Atlantic Corp. v. Twombly that a complaint must contain facts that plausibly entitle the plaintiff to relief instead of mere conclusory statements. The Supreme Court’s May 2009 decision in Ashcroft v. Iqbal extended this standard to all civil complaints. The Act would restore the more lenient notice pleading standard of Conley, which held that a court could dismiss a complaint only if it appeared without a doubt that a plaintiff would be able to prove no set of facts in support of her claim.

Status: The bill was introduced in the Senate by Sen. Arlen Specter (D-Pa) and co-sponsor Sen. Russell Feingold (D-WI) on July 22, 2009, and it was referred to the Senate Judiciary Committee.

On July 24, 2009, the U.S. Chamber of Commerce sent a letter to the U.S. Senate Committee on Health, Education, Labor, and Pensions in which the Chamber urged the Senate Committee to conduct a thorough hearing regarding Craig Becker’s proposed nomination to the National Labor Relations Board. 

Submitted to Committee Chairman Edward M. Kennedy (D-Mass.) and Committee Ranking Member Michael Enzi (R-Wyo.), the letter “urges the Committee to hold thorough hearings to carefully review the president’s nomination … before acting on his confirmation.” While the Chamber’s letter raises several concerns regarding Becker’s nomination, it does not explicitly take a position for or against the nomination.

Becker currently serves as the Associate General Counsel to the AFL-CIO and the Service Employees International Union (SEIU). According to the Chamber, Becker’s affiliation with the SEIU “raises questions about Mr. Becker’s ability to impartially judge cases that may come before the Board.” The letter further references the SEIU’s “record of using questionable pressure tactics with the goal of forcing employers and workers to recognize unions without the democratic protection of secret ballot elections.” 

The letter specifically raises concerns regarding whether Becker would seek to implement portions of the controversial Employee Free Choice Act “even if it is never enacted by Congress.” The letter also urges the Committee to question Becker regarding past comments about the National Labor Relations Act, including prior statements that employers should be stripped of their authority to participate in labor representation proceedings.

The letter also suggests Becker supports repeated grievance strikes “not merely to resolve grievances, but instead as a way to give labor unions greater power and leverage over employers in bargaining than the traditional strike.”  The letter concludes that while such views “are alarming in and of themselves, what is especially troubling is that Mr. Becker does not necessarily believe that such changes require Congressional approval.”

President Obama first announced Becker’s intended nomination on April 24, 2009, and he formally sent the nomination to the Senate on July 9, 2009.  A summa cum laude graduate of Yale College in 1978 and Yale Law School in 1981, Becker has practiced labor law for the past 27 years and has taught law at the UCLA, University of Chicago, and Georgetown. 

Core Provisions: This legislation would amend the Portal-to-Portal Act to suspend the statute of limitations on Fair Labor Standards Act litigation while an investigation by the Secretary of Labor is pending. Under the bill, the statute of limitations would be tolled from the date the Secretary provides notice to the employer of an investigation related to the cause of action until the date the Secretary provides notice to the employer that the investigation has concluded.

The bill is based on a Government Accountability Office (GAO) recommendation made in a report concerning the Department of Labor’s investigations into wage theft. The GAO investigated the Wage and Hour Division’s complaint handling and found that the investigation process was too lengthy and the statute of limitations on wage claims often ran out while the investigation was underway.

Status: H.R. 3303 was introduced by Rep. Miller (D-CA) on July 23, 2009 and referred to the House Committees on Education and Labor and on the Judiciary.

Core provisions:  This Act would entitle employees to two weeks of leave per 12-month period for each family member of the employee who is in the military and either receives notification of an impending call or order to active duty or is deployed in connection with a contingency operation. The Act would apply to spouses, children, or parents of members of the military.  The leave could be taken intermittently or all at once.  The employer may permit, but not require, the employee to use paid leave during the two-week period. To the extent an employer does not otherwise grant its employees a full two weeks of paid leave, the remaining leave could be taken as unpaid leave. An employer may require an employee to provide certification of the family member’s military situation in a timely manner. Upon return from leave, employees are entitled to be restored to their prior position or an equivalent position with equivalent rights and benefits of employment. The Act would make unlawful an employer’s attempt to discriminate against an employee for exercising rights under this Act, or interfere with, restrain, or deny the employee permitted leave. 

Status:  The bill was introduced in the Senate on July 10, 2009, by Sen. Ron Wyden (D-Ore.), and has been referred to the Committee on Health, Education, Labor, and Pensions.

On July 16, 2009, President Obama announced his intent to nominate Jacqueline A. Berrien as Chair of the Equal Employment Opportunity Commission. Berrien has served as Associate Director-Counsel of the NAACP Legal Defense and Education Fund since September 2004.  From 2001 to 2004, Berrien was a Program Officer in the Ford Foundation’s Peace and Social Justice Program. Berrien also worked for eight years as a staff attorney with the Lawyers’ Committee for Civil Rights and the American Civil Liberties Union.

In a statement issued by the White House, President Obama said “Jacqueline Berrien has spent her entire career fighting to give voice to underrepresented communities and protect our most basic rights. Each of us deserves a fair chance to succeed in our workplace and make a contribution to this nation, and I’m confident that Jacqueline’s passion and leadership will ensure that the Equal Employment Opportunity Commission is living up to that mission. I look forward to undertaking this important work with Jacqueline in the months and years ahead.”

Commissioner Stuart Ishimaru has been serving as the Commission’s Acting Chair since January 23, 2008. Acting Vice Chair Christine Griffin’s term expired July 1, 2009, but she may remain for 60 days without any action by the White House. President Obama has nominated Griffin to be deputy director of the Office of Personnel Management. Commissioner Naomi Earp resigned on June 7, 2009, leaving Constance Barker as the only remaining Republican commissioner.

On July 15, 2009, the Equal Employment Opportunity Commission (EEOC) held a hearing in Washington, D.C. concerning age discrimination, with testimony received from three panels.   The EEOC also issued a technical assistance document, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to address a growing concern.  The meeting was chaired by Acting Chairman Stuart Ishimaru and attended by Vice Chair Christine Griffin and Commissioner Constance Barker.

The three Commissioners uniformly expressed concern with age discrimination and a strong desire to address it. Chairman Ishimaru noted that age discrimination claims were up 29% over the prior year and that one-quarter of EEOC charges included an age discrimination component.  He explained that the issue cuts broadly across social status, race, gender, and many other categories. The Commission expects the trend of rising claims to continue.

The first panel included two university professors and Rae T. Vann, General Counsel for the Equal Employment Advisory Council. Purdue University management professor Michael Campion addressed stereotyping in the workplace and its effect on age discrimination and presented several recommendations for employers, including (1) focusing on the individual, job related characteristics of employees; (2) starting with analysis of the work to be done, and the knowledge, skills and other human attributes required to perform that work; and (3) monitoring the impact of employment decisions on age, just as they should do for race and gender, and taking action when disparities occur.

American University law professor Cathy Ventrell-Monsees testified concerning the judicial treatment of age discrimination. In asserting that age discrimination is treated differently than other forms of discrimination, Ventrell-Monsees, who is also president of Workplace Fairness, a non-profit employee rights organization, focused largely on what she called “the epitome of judicial activism” in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2348 (2009), where Justice Thomas’s majority opinion created the requirement that age discrimination must be a “but-for” cause in ADEA cases. Ventrell-Moses recommended that the EEOC issue regulations that fully define the components of the “reasonable factor other than age” defense, and develop policy guidance applying Supreme Court precedent to explain the standards for examining relevance and weight of ageist comments and make application of such standards uniform across Title VII, the ADEA, and ADA. In her published remarks, she also urged Congress to eliminate the differences between the ADEA and Title VII, including (i) overturning three recent Supreme Court decisions; (ii) applying the same standards of proof for disparate treatment and impact claims; (iii) applying the same remedies; (iv) applying the same class action procedures; (v) applying the same coverage to state governmental employees, and (vi) requiring greater deference to EEOC regulations and rulemaking.

Vann addressed best practices by EEAC-member businesses. Commissioner Barker expressed positive interest in “Phased Retirement,” a program which allows older employees to work a reduced schedule while receiving both salary and partial retirement benefits and permits companies to ease skilled workers out while training replacements. Vann remarked that the program “is popular both with workers who would like to scale back without leaving the workforce entirely and with employers who are concerned about the brain drain and want to keep experienced workers at least on a part-time basis.”

The second panel included two EEOC attorneys and three plaintiffs from recent age discrimination cases who described their experiences in trying to seek efficient justice in the courts. The plaintiffs appealed to the EEOC for help in improving age discrimination law.

The final panel, entitled “Pondering Pensions: Employee Benefits in the Kentucky Retirement Era,” presented testimony from Laurie McCann, an AARP senior attorney, and Eric Dreiband, a former EEOC General Counsel.  The panelists analyzed a number of Supreme Court age cases and the Older Workers Benefit Protection Act of 1990 (OWBPA).  McCann examined several cases decided after Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361 (2008), and concluded that the current case law framework for age discrimination is overly narrow and “severely limits the ADEA’s effectiveness to fight discrimination against older workers.”  Dreiband stated that, under section 9 of the ADEA, the Commission could respond to the Kentucky Retirement Systems case in a number of ways, including creating an administrative exemption, issuing regulations explaining the case, or providing subregulatory guidance.

The EEOC’s new technical assistance document answers employee questions regarding any “offer of a severance agreement in exchange for a waiver of [] actual or potential discrimination claims.”  Part II provides basic information concerning severance agreements. 

Part III explains when a waiver is a valid. This section provides factors courts will consider to determine whether a waiver of rights under Title VII, the ADA, or the EPA was “knowing and voluntary,” such as whether the waiver was written in clear and specific terms and whether the employee had enough time to read and consider the waiver. The document states that a waiver provision attempting to limit a terminated employee’s right to testify, assist, or participate in an EEOC investigation, hearing, or proceeding is unenforceable, and notes in a footnote that such a provision constitutes unlawful retaliation in violation of federal employment rights statutes. Part III notes that some courts require an employee to return severance pay or other consideration received for signing the waiver before bringing a claim under Title VII, the ADA, or the EPA.  However, employees cannot be similarly required to “tender back” before bringing a claim under the ADEA.   

Part IV addresses waivers of age discrimination claims and compliance with OWBPA. This section lists the seven statutory requirements for waivers of age discrimination claims, including that the waiver must: specifically refer to rights or claims arising under the ADEA, advise the employee to consult an attorney before signing, and give the employee seven days to revoke his or her signature. The Commission interprets the statutory requirement that the waiver be “written in a manner calculated to be understood” to mean that the waiver “must not have the effect of misleading, misinforming, or filing to inform participants and must present any advantages or disadvantages without either exaggerating the benefits or minimizing the limitations.” The statute also requires that a waiver provide the employee with at least 21 days to consider the offer, and the Commission notes that the 21-day period starts over if “material changes to the final offer are made.” 

Part IV notes that although an employer cannot avoid its duties under an ADEA waiver because an employee exercises his or her right to challenge the waiver’s validity, an employer may offset money paid for a waiver against a monetary award resulting from an employee’s successful challenge of the waiver. 

Part IV also details additional requirements for group layoffs of employees age 40 and over, including the employer’s obligation to inform employees who are being laid off of the “decisional unit” of employees considered for the termination program, eligibility factors for the program, time limits applicable to the program, and job titles and ages of all individuals who are eligible plus the ages of all individuals in the same job classifications or organizational unit who are not eligible for the termination program. The document also includes two appendices that provide a checklist for “What to Do When Your Employer Offers You a Severance Agreement” (Appendix A) and a model waiver (Appendix B).

On July 9, 2009, President Obama announced the nomination of Brian E. Hayes, Republican labor policy director for the Senate Health, Education, Labor, and Pensions Committee, to the National Labor Relations Board and sent his nomination to the Senate, along with those of two previously-announced Democratic nominees, Craig Becker and Mark Pearce. If approved, the nominations, for three staggered terms, will fill longstanding vacancies on the Board.

Hayes is an experienced labor and employment management-side practitioner who, in addition to his work in the Senate, has taught labor, arbitration, and employment classes as an adjunct faculty member at Western New England College School of Law. Hayes previously served as counsel to the NLRB chairman and clerked for the NLRB’s chief administrative law judge.

Partisan gridlock between the Democratic Senate and the Bush Administration led to the three Board vacancies from December 31, 2007 to the present  Since that time, the Board has operated with two members, an arrangement that has been found invalid by the D.C. Circuit in Laurel Baye Healthcare v. NLRB, No. 08-1162, slip op. (D.C. Cir. May 1, 2009), but upheld by three other circuits.

By voice vote on July 10, 2009, the Senate approved the nomination of Phyllis C. Borzi to lead the Employee Benefits Security Administration (”EBSA”).  Borzi will serve as assistant secretary of labor for employee benefits security for the Department of Labor.

Borzi, who was of counsel with the Washington D.C. law firm O’Donoghue & O’Donoghue LLP, has extensive experience on ERISA and employee benefit matters. She previously worked as Pension and Employee Benefits Counsel for the Subcommittee on Labor-Management Relations of the Committee on Education and Labor in the U.S. House of Representatives and served on a number of health care and employee benefit-related advisory boards.

Her nomination was announced by President Obama on March 25, 2009.