On November 19, the Department of Homeland Security (DHS) announced its new “I E-Verify” campaign, which provides recognition to businesses that use E-Verify to maintain a legal workforce. E-Verify is a free 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.

To be recognized under the “I E-Verify” program “[m]ember companies must enroll in E-Verify, undergo an I-9 audit, adhere to IMAGE best hiring practices and sign an official IMAGE partnership agreement with [Immigrations and Customs Enforcement (ICE)].” IMAGE, or “ICE Mutual Agreement Between Government and Employers,” assists employers in developing more secure and stable workforces through education and training on proper hiring procedures and techniques for identify fraudulent immigration documentation.

According to Secretary Napolitano, “[t]he ‘I E-Verify’ program will let consumers know which businesses are working hard to follow the law and are committed to protecting employment opportunities.” DHS stated that nearly 170,000 employers currently participate in E-Verify and almost eight million queries have been processed since January 2009. In a separate announcement, U.S. Citizenship and Immigration Services (USCIS) reported that almost 97 percent of all E-Verify queries are now automatically confirmed without the need for employee action or follow up.

Additionally, on November 19 Assistant Secretary for ICE John Morton announced the issuance of 1,000 notices of inspection. These notices informed employers across the country of ICE’s intention to audit their hiring records and examine their compliance with employment eligibility verification laws. Such audits include comprehensive reviews of employers’ I-9 forms. This most recent en masse issuance of inspection notices is the largest in history, and comes just months after ICE issued over 650 notices of inspection this past July, which at the time was the largest such issuance of inspection notices.

ICE explained that “protecting employment opportunities for the nation’s lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities.” Previously, on April 30, 2009, DHS issued updated enforcement guidelines to its ICE agents. Under these updated guidelines, ICE stated its intent to focus worksite enforcement program resources on the criminal prosecution of employers who knowingly hire illegal workers. DHS announced that by prioritizing criminal prosecution of employers who knowingly “cultivate illegal workplaces,” ICE will “target the root cause of illegal immigration.”

On November 23, 2009, USCIS also announced that with the October 28 signing of the DHS Appropriations Act of 2010 by President Obama, E-Verify, among other USCIS programs, would be extended until September 30, 2012.

On November 19, 2009, the Senate Committee on Health Education Labor and Pensions (HELP) held a confirmation hearing on the nominations for three Commissioners and for General Counsel of the Equal Employment Opportunity Commission (EEOC). The pending nominations include Jacqueline A. Berrien, Chai R. Feldblum, and Victoria A. Lipnic as Commissioners and P. David Lopez as General Counsel.

The hearing was attended by, among others, Acting EEOC Chair Stuart Ishimaru and Commissioner Constance Barker.  House Majority Leader Steny Hoyer (D-MD) and Representative Yvette Clarke (D-NY) appeared to express their personal support for the confirmation of Feldblum and Berrien, respectively.

Committee Chairman Tom Harkin (D-IA) highlighted the unique role of the EEOC and its ever-increasing workload.  Harkin asserted that EEOC has been underfunded in recent years, resulting in a backlog of over 85,000 claims. 

Most questions from the Committee were directed at Berrien and Feldblum.  Berrien has been previously reported to be President Obama’s choice to be the Chair, and it is expected that Feldblum would be designated as Vice Chair.

Berrien testified that her priority as Chair would be to improve the service of the EEOC by increasing the strategic efficiency of the Commission. She pledged to work with other government officials and with Congress to ensure the enforcement of employment discrimination laws. Berrien also stressed the importance of preventing employment discrimination by heightening awareness and increasing public outreach.

Feldblum testified about her commitment to civil rights and social welfare issues, particularly for the equal treatment of persons with disabilities, as well as for gay, lesbian, bisexual, and transgendered persons. She stressed the importance of seeking common ground and tolerance among diverse populations.

Lipnic stressed improving the Commission’s response time, noting that “justice delayed is justice denied” for both employees and employers. She also noted the burden that EEOC investigations often place on employers.

Lopez testified that he would work as General Counsel to function as a national law firm that “is able to effectively and efficiently muster its resources to combat discrimination and ensure equal opportunity throughout this nation.”

Chairman Harkin noted at the end that the Committee intends to move as expeditiously as possible. The record will remain open for ten days, during which members may submit questions to the nominees.

A video of the hearing and the statements of the nominees are available here.

Core Provisions: This legislation would amend the National Labor Relations Act and the Railway Labor Act to provide greater protections for individuals choosing to form, join or assist labor organizations, or to refrain from doing so. The bill would modify section 7 of the National Labor Relations Act, 29 U.S.C. § 157, to exclude language which makes an employee’s right to form, join, or assist labor organization, or to refrain from such activities, subject to any agreement requiring membership in a labor organization as a condition of employment. The bill would also modify section 8(a) of the Act to strike language that makes an employer’s inability to encourage or discourage membership in a labor organization subject to an employer’s ability to make certain agreements with labor organizations relating to conditions of employment. The bill would modify section 8(b) by removing language that makes it an unfair labor practice for a labor organization to discriminate against an employee whose membership has been denied on some ground other than failure to pay dues, and by striking language that protects only employees covered by an agreement from being required to pay excessive or discriminatory fees.  The proposed changes would also modify section 8(f) by striking language that deals with an employer in the building and construction industry’s ability to make agreements dealing with employees engaged with a labor organization. 

This legislation would modify the Railway Labor Act, 45 U.S.C. § 152, by removing paragraph Eleventh, which permits unions to make agreements to ensure the security of the union. 

Status: Rep. Steve King (R-IA) introduced the bill on November 18, 2009.  It was referred to the House Committee on Education and Labor that same day.

Core Provisions: This legislation would guarantee up to seven days of paid sick leave for full-time workers infected by a contagious illness, such as the H1N1 virus. Part-time workers would be eligible for paid leave for a number of days or hours to be determined under a formula specified by the Secretary of Labor. The bill provides that employees may use the paid leave for their own contagious illness, or to care for a child with a contagious illness.

Employers who already provide employees with seven days of paid leave that may be used for the same purposes and under the same conditions as those specified in the bill would not be required to provide additional paid sick leave under the new legislation. The bill also includes an anti-retaliation provision and creates a private right of action for individuals against employers who interfere with the rights provided under the legislation.

Status: Rep. DeLauro (D-CT) introduced H.R. 4092 on November 17, 2009, and it was referred to the Committees on Education and Labor; House Administration; and Oversight and Government Reform. Sen. Dodd (D-CT) introduced a companion bill in the Senate (S. 2790), and it was referred to the Committee on Health, Education, Labor, and Pensions.

On November 18, 2009, the Senate Health, Education, Labor, and Pensions Committee approved President Barack Obama’s nomination of Dr. David Michaels as the Assistant Secretary of Labor for the Occupational Safety and Health Administration. During an Executive Session, a majority of the Committee voted in favor of the nomination. Senators Richard Burr (R-NC) and Tom Coburn (R-OK) voted against the nomination.

The Assistant Secretary of Labor is responsible for developing and enforcing OSHA regulations regarding workplace safety and health, as well as issuing interpretive 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.

On November 16, 2009, the United States Government Accountability Office (GAO) released an October 2009 report finding that OSHA’s efforts to verify employers’ workplace injury and illness data may not be adequate. OSHA monitors workplace injury and illness data to allocate enforcement and outreach resources, evaluate programs’ effectiveness, and determine standards development priorities.

The GAO report focused on OSHA’s efforts to verify the data it collects from employers on workers’ injuries and illnesses through its annual OSHA Data Initiatives survey. The GAO report found that OSHA does not always require inspectors to interview workers about injuries and illnesses. GAO observed that these interviews could help OSHA evaluate the accuracy of the records because they are the only source of data not provided by the employers. During interviews with OSHA inspectors, GAO learned that OSHA conducts records audits approximately two years after incidents are recorded, thus many workers are no longer employed at the worksite and cannot be interviewed.

The GAO report also found that OSHA does not review the accuracy of injury and illness records for worksites in eight high hazard industries because it has not updated the industry codes used to identify these industries since 2002. GAO learned that an update of industry codes requires a regulatory change that is not currently an agency priority.

GAO made four recommendations to OSHA to verify the accuracy of employer-provided injury and illness data: (1) require inspectors to interview workers during records audits to obtain information on injuries or illnesses; (2) minimize the amount of time between the date employers record injuries or illnesses and the date OSHA conducts an audit; (3) update the list of high hazard industries used to select worksites for records audits and other purposes; and (4) increase education and training to employers to help them determine which injuries and illnesses are recordable.

Prior to the report’s release, OSHA submitted a response to a draft report it received from GAO. In its response, OSHA stated it shares the concerns addressed by GAO. Accordingly, OSHA plans to (1) require inspectors to interview employees during record audits; (2) develop policies to conduct record audit inspections in a timely fashion; (3) pursue rulemaking to update the industry coverage of the recordkeeping rule; and (4) supplement current educational outreach programs.

On November 10, 2009, President Barack Obama nominated Cynthia Attwood as a Member of the Occupational Safety and Health Review Commission (OSHRC). OSHRC is a quasi-judicial agency responsible for adjudicating occupational safety and health cases.

Attwood has served as an Administrative Appeals Judge for the Department of Labor’s Administrative Review Board, as well as an Attorney Advisor for the Board.  She also has served in the Senior Executive Service at the Department of Labor, both as the Associate Solicitor for Occupational Safety and Health, and the Associate Solicitor for Mine Safety and Health.

On November 10, 2009, the Senate passed the Airline Flight Crew Technical Corrections Act (S. 1422) by unanimous consent. This legislation will amend the Family and Medical Leave Act (”FMLA”) to expand protection for airline flight crews. The legislation clarifies 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. The FMLA 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 Senate version of the bill was sponsored by Sen. Patty Murray (D-Wash).  An almost identical bill (H.R. 912) passed in the House on Feb. 9, 2009.

Core Provisions: The House passed its version of a comprehensive health care reform bill on November 7, 2009 by a party-line vote of 220-215, with all but one Republican member of the House, Anh “Joseph” Cao of Louisiana, voting against the measure.

The bill contains a number of provisions that affect employers. Employers must offer employees and their families health care coverage pursuant to an established employer health care plan or other qualified plan. If the employee accepts the offer of coverage, the employer is obligated to make timely contributions to fund the coverage. As an alternative to directly insuring employees, the bill also establishes a Health Insurance Exchange that will allow small employers with 25 or fewer employers access to various coverage options for their employees from public and private insurers. Within three years of the bill becoming law, employers with 100 or fewer employees would have access to the Health Insurance Exchange, and, over time, the bill would grant larger employers access to the Exchange.

With respect to full-time individual employees, employers must cover a minimum of 72.5 percent of the applicable premium of the lowest cost plan offered by the employer. With respect to family coverage, employers must cover a minimum of 65 percent of the applicable premium of the lowest cost plan offered by the employer. Part-time employees must be covered proportionately based on their average weekly hours compared to the minimum weekly hours of a full-time employee.

While employers are required to offer employees coverage, beginning in the second year following the bill becoming law, if an employee declines the offer but otherwise obtains coverage through the Exchange, the employer is required to make a timely contribution to the Exchange in an amount equal to 8 percent of the average wages paid to the employee during the period of enrollment, but not in excess of the minimum employer coverage requirements discussed above. Small employers are required to contribute lower percentage amounts to the Exchange in these instances, with the smallest employers (those with annual payrolls lower than $500,000) completely exempt from the Exchange contribution requirement.

Employers participating in the health care coverage system created by the bill that fail to comply with the coverage requirements with respect to any covered employee will be taxed $100 per day (per affected employee) until the employer meets its coverage requirements. Employers have the option of declining to participate in the health care coverage system created by the bill, but must pay an excise tax of 8 percent of the annual wages paid to its employees. Small employers that elect not to participate will incur a lower excise tax, with the smallest employers (those with annual payrolls lower than $500,000) completely exempt from the excise tax.

H.R. 3962 differs notably in a number of respects from the health care reform bill approved by the Senate Finance Committee on October 13, 2009. Perhaps most significantly, H.R. 3962 mandates that employers offer coverage to employees or alternatively, if eligible, contribute to the Health Insurance Exchange on behalf of employees. Unlike H.R. 3962, the Senate Finance Committee’s bill contains no direct requirement that employers offer coverage in the near future. The Senate Finance Committee’s bill eventually imposes penalties for failing to offer employees coverage, but does not do so until July 1, 2013. At that time, employers with more than 50 employees that do not offer health insurance coverage would be required to reimburse the government for tax credits and subsidies provided to employees who purchase individual health insurance coverage. As discussed, H.R. 3962 in contrast imposes a direct excise tax on most employers’ payrolls for failure to offer coverage.

Status: Rep. Dingell (D-MI) introduced the bill to the full House on October 29, 2009. The House passed the bill by a vote of 220-215 on November 7, 2009. The bill will now move to the Senate for consideration.

On November 5, 2009 the House approved the Senate’s amended version of H.R. 3548 by a 403-12 vote. The Senate approved the legislation one day earlier by a vote of 98-0.

The bill amends the Supplemental Appropriations Act of 2008 to provide additional temporary emergency unemployment compensation. It is the fourth extension of unemployment benefits that Congress has passed in the last 18 months. If enacted into law, the bill will provide an additional 14 weeks of unemployment compensation in all states, plus an additional six weeks of compensation in states where the three-month average unemployment rate is 8.5% or higher.

This final vote by the House sends the bill to President Obama. The White House has already announced the President’s intention to sign the bill into law Friday morning. H.R. 3548 is sponsored by Rep. Jim McDermott (D-WA) and was initially introduced in the House on September 10, 2009.