Core provisions:  This legislation would amend the Family and Medical Leave Act (”FMLA”) to include airline flight crews, a group of employees currently excluded from coverage. Airline flight crews currently do not qualify for coverage under the FMLA, which provides employees who have worked at least 1,250 hours or 60 percent of a full-time work schedule in the previous year up to 12 weeks of unpaid leave for certain medical reasons. The bill would clarify that flight crews should be credited for all hours, not just hours spent during flight, when determining whether they have met the threshold for FMLA qualification.   

Status:  The bill was introduced on July 9, 2009 by Sens. Patty Murray (D-Wash), Lisa Murkowski (R-Alaska), Jim Webb (D-Va.), Sue Collins (R-Maine), Chris Dodd (D-Conn.), and Christopher Bond (R-Mo.).  A similar bill (H.R. 912) passed in the house on Feb. 9, 2009.

Core Provisions: The bill would amend the Fair Credit Reporting Act to generally prohibit the use of consumer credit checks in relation to current and prospective employees for the purposes of making employment decisions.

Under the bill, employers would be prohibited from using information in a consumer report or investigative consumer report pertaining to an employee or applicant’s creditworthiness, credit standing, or credit capacity when making hiring determinations or taking adverse employment actions as defined by the Fair Credit Reporting Act. Notably, this prohibition would apply even if the employee or applicant consents to such use. The bill would establish exceptions when: (1) the employee or applicant applies for, or currently holds, employment that requires national security or FDIC clearance; (2) the employee or applicant applies for, or currently holds, employment with a state or local government agency that otherwise requires use of a consumer report; (3) the employee or applicant applies for, or currently holds, a supervisory, managerial, professional, or executive position at a financial institution; or (4) otherwise required by law.

Status: Rep. Steve Cohen (D-TN) introduced the bill on July 9, 2009, and it was referred to the House Committee on Financial Services that same day.

Core provisions:  On July 9, the Senate approved by unanimous consent an amendment to the 2010 homeland security appropriations bill that would prohibit funds in the bill from being used to rescind the federal no-match program.

The amendment was proposed by David Vitter (R-La.) and would keep in place the no-match rule, which was initially promulgated by the Bush administration in 2007.  Under the system, DHS sends a letter to alert employers when an employee’s Social Security number does not match government records.  The rule requires employers to resolve discrepancies or face liability. 

The unanimous amendment came one day after Department of Homeland Security Secretary Janet Napolitano announced that the current administration intends to halt the “no-match” rule.  The rule is currently being challenged in court by a coalition of labor unions, business groups, and immigrant rights groups, and the Social Security Administration has suspended sending out no-match letters until the lawsuit is resolved. 

Status:  Rep. David Price (D-N.C.) introduced the bill in the House June 16, 2009.  The House approved its version of the appropriations bill June 24, 2009.  The Senate has asked for a conference to resolve differences.

On July 8, 2009, the Senate Health, Education, Labor, and Pension Committee, by voice vote, approved to nomination of Phyllis C. Borzi to head the Employee Benefits Security Administration (”EBSA”).  Her nomination now heads to the full Senate for final approval.

Borzi is currently of counsel with O’Donoghue & O’Donoghue LLP in Washington, D.C., where her practice focuses on ERISA and employee benefits. 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.

On March 25, 2009, President Obama nominated her to serve as assistant secretary of labor for employee benefits security in EBSA, a DOL subdivision.

Core provisions:  On July 8, the Senate approved an amendment to the 2010 homeland security appropriations bill that would make E-Verify, the federal government’s voluntary employment verification system, permanent. The amendment would also require all federal contractors to use E-Verify beginning September 8, 2009.Employers can currently use the program to verify employment eligibility of new hires by comparing information from I-9 forms with federal government databases. The comparison is done through a website operated by the Department of Homeland Security and the Social Security Administration.

The Senate passed the amendment, which was offered by Jeff Sessions (R-Ala.), by a vote of 53-44. The House of Representatives previously voted to extend the program for two years. Also added to the bill is an amendment offered by Charles Grassley (R-Iowa) that would allow an employer to verify the status of all employees, not just new hires.

Another part of the amendment approved July 8 includes a provision from Patrick Leahy (D-Vt.) which would permanently authorize the EB-5 visa program, which enables foreigners who invest at least $500,000 in the United States to secure a green card.Homeland Security Secretary

Janet Napolitano had announced earlier that day that DHS will implement a regulation that will award federal contracts only to employers who use E-Verify, prompting a motion by Charles Schumer (D-N.Y.) to table the amendment as moot. The motion to table the amendment was rejected.

Status:  Rep. David Price (D-N.C.) introduced the bill in the House June 16, 2009. A cloture motion on the bill has been presented in the Senate, with the latest floor actions July 8, 2009.

On July 8, 2009, the Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Administration’s support for a regulation that requires employers to use E-Verify in order to be awarded federal contracts. Additionally, the department announced its intention to rescind the controversial No-Match Rule.

Secretary Napolitano praised E-Verify as “a smart, simple and effective tool that reflects our continued commitment to working with employers to main a legal workforce.” The regulation requires the use of E-Verify by covered federal contactors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. The rule will take effect on September 8, 2009.

The federal government had announced a fourth delay in implementing the E-Verify rule on June 2, 2009, 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.

E-Verify is an internet-based system administered by U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA), that compares information from an employee’s I-9 Form against federal government databases to verify employment eligibility. 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 announcement came mere hours before the Senate approved an amendment to the 2010 Homeland Security appropriations bill that would make E-Verify permanent and would require all federal contractors to use E-Verify beginning September 8, 2009.

DHS also announced its intention to propose a new regulation to rescind the 2007 No-Match Rule. The No-Match Rule was never put in effect because it was blocked by court order shortly after its issuance. The No-Match Rule details steps employers may take when they receive a no-match letter from the SSA.  SSA informs employers by letter when specific employees’ names and corresponding Social Security numbers provided on the employers’ Form W-2 wage reports do not match SSA’s records.  These no-match letters may be used as evidence of an employer’s constructive knowledge that specific employees may be unauthorized workers.

In response to a June 29, 2009 preliminary injunction from the U.S. District Court for the Middle District of North Carolina, the Department of Labor announced that it has lifted its suspension of the H-2A visa program final rule.

The final rule on the new H-2A labor certification 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, as well as regulations regarding the enforcement of contractual obligations entered into by such workers. On May 28, 2009, DOL had announced a nine-month suspension of these new H-2A labor certification regulations, and notice of the suspension was published in the Federal Register the next day.  The June 29, 2009 order from the Middle District of North Carolina federal court concluded an injunction against the suspension was appropriate because the DOL would suffer relatively little harm from the injunction, and the plaintiff growers associations would suffer irreparable harm in the absence of an injunction. 

Under the newly reinstituted final rule, 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 are required to submit a job order to the applicable SWA.

Core Provisions: The bill would amend the Worker Adjustment and Retraining Notification (”WARN”) Act by expanding notification requirements and enforcement provisions. 

Under the current WARN Act, employers with 100 or more employees must provide employees with 60-days written notice in the case of mass layoff that: 1) will affect 500 or more employees or 2) will affect 50-499 employees if they make up at least 33% of the active workforce. The current WARN Act also requires employers with 100 or more employees to provide 60-days written notice to employees when a plant closing involving 50 or more employees occurs.

The amendments contained in the bill would impose notification obligations on employers with 75 or more employees, rather than 100 or more employees. The bill would change the definition of a plant closing under the Act to cover closings that affect 25 or more employees at a worksite, as opposed to the current minimum of 50 employees. In addition, the bill would substantially lower the notice threshold for a mass layoff. Under the bill, employers would be required to provide notice in the event of a mass layoff affecting 25 or more employees at a single worksite. Further, the bill would extend the written notification period to 90 days instead of the current 60-day period.

In addition, the bill would require the employer to send notification to the Secretary of Labor and the governor of the state where the plant closing or mass layoff is to occur. The notice must include the number of affected employees, the reason for the plant closing or mass layoff, whether the employer has jobs available in other locations or establishments, a statement of each employee’s rights to wages, severance and benefits, and a statement of the available employment and training services provided by the U.S. Department of Labor.

The bill would also provide the U.S. Department of Labor with administrative enforcement authority over the WARN Act. Currently, the WARN Act only allows employees to bring civil actions against employers for alleged violations. Finally, the bill would increase penalties from a single day of back pay for each day of a violation to two days of back pay for each day of a violation.

Status: Rep. George Miller (D-CA) introduced the bill on June 25, 2009, and it was referred to the House Committee on Education and Labor that same day.

Core Provisions: The Living American Wage Act would amend the Fair Labor Standards Act (FLSA) to provide for the calculation of the minimum wage based on the federal poverty threshold. This legislation would require the Secretary of Labor to recalculate the minimum wage rate by no later than June 1, 2010, and subsequently once every four years. The Secretary would be required to set the rate at such a level that a person working for minimum wage 40 hours per week, 52 weeks per year would earn an amount fifteen percent higher than the federal poverty threshold for a family of two, including one child under the age of 18, as published each year by the Census Bureau.

The current federal minimum wage is $6.55 per hour and is set to increase to $7.25 per hour effective July 24, 2009. The minimum wage is not currently tied to any federal poverty standards.

Status: Rep. Green (D-TX) introduced the legislation on June 25, 2009, and it was referred to the House Committee on Education and Labor. Rep. Green introduced similar legislation in the 110th Congress, but that bill failed to make it out of committee.