Core Provisions: On October 15, the House approved 307-114 a conference report for the 2010 Homeland Security Appropriations Bill. The legislation includes a three-year extension of E-Verify, the federal government’s voluntary, internet-based system that allows employers to verify employees work eligibility, and appropriates $137 million to operate the system.

The bill also provides three-year authorization extensions for visa programs for religious workers (R visa), rural-serving doctors (Conrad 30-J visa), and those who invest money in a business that creates at least 10 full-time jobs in the United States (EB-5 visa).

Status: Rep. David Price (D-NC) introduced the bill on June 16, 2009.  The House originally approved its version of the bill on June 24, 2009. The Senate asked for a conference to resolve differences. The conference report will now move to the Senate for consideration.

Core Provisions: New House and Senate bills would amend the Age Discrimination in Employment Act of 1967 (ADEA) to clarify the plaintiff’s burden of proof in lawsuits brought under the statute. Under the bills, a plaintiff can establish an unlawful employment practice by demonstrating by a preponderance of the evidence that age was a “motivating factor” for the adverse employment action, even if other factors also contributed to the decision. Alternatively, the plaintiff can establish by a preponderance of the evidence that the challenged action would not have occurred absent the employee’s age.

The bills were introduced in response to the Supreme Court’s June 18, 2009 decision in Gross v. FBL Fin. Servs. Inc., 129 S. Ct. 2343 (2009), in which the Court held a plaintiff bringing an ADEA disparate treatment claim must prove that age was the “but for” cause of the adverse employment action. The bills’ stated purpose is to ensure the standard for proving unlawful disparate treatment under the ADEA and other anti-discrimination and anti-retaliation laws mirrors the standard under Title VII of the Civil Rights Act of 1964, including amendments made by the Civil Rights Act of 1991.

Status: Rep. Miller (D-CA) and 16 co-sponsors introduced the House version of the bill (HR 3721) on October 6, 2009, and it was referred to the House Committees on the Judiciary and Education and Labor later that day. Similar legislation was introduced in the Senate by Sen. Harkin (D-IA) and 16 co-sponsors.

On October 6, 2009, the Senate passed an amendment (SA 2588) to the Department of Defense Appropriations Act of 20l0 (HR 3326) which will restrict the use of binding arbitration provisions by federal contractors.

The amendment affects federal defense contractors who currently use mandatory arbitration agreements of claims under Title VII or any tort claims “relating or arising out of” sexual assault or sexual harassment, including claims of assault and battery, intentional infliction of emotional distress, false imprisonment or negligent hiring, supervision, or retention.  The amendment prohibits allocating defense appropriations funds to any “existing or new” federal contract if the contractor or subcontractor “at any tier” requires employees or independent contractors to sign such mandatory arbitration agreements as a condition of employment.

The amendment passed with 68 votes in favor and 30 against.  The amendment was submitted by Senator Franken (D-MN) on October 1, 2009, and is co-sponsored by Senator Landrieu (D-LA). 

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. 3580 on September 16, 2009, and it was referred to the House Ways and Means, Judiciary, and Education and Labor Committees.  Rep. King introduced a similar bill in the 110th Congress, but that bill failed to make it out of committee.

Core Provisions: This legislation would amend the Internal Revenue Code to provide employers an income tax credit for employing members of the Ready Reserve and National Guard and veterans recently separated from the Armed Forces. The credit allowed would amount to 15 percent of the qualified wages paid or incurred during the calendar year. Only the first $10,000 of wages for each employee per year would be taken into account.

Status: Rep. Alexander (R-LA) introduced H.R. 3620 on September 22, 2009, and it was referred to the House Committee on Ways and Means.

Core Provisions: The CARE Act would amend the Fair Labor Standards Act (”FLSA”) to strengthen the prohibitions against child labor.  Specifically, the Act would (1) narrow the exemption for children performing agricultural work; (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 the bill on September 15, 2009, and it was referred to the House Committee on Education and Labor that same day.  Rep. Roybal-Allard introduced similar legislation (H.R. 2674) in the 110th Congress, but that bill failed to make it out of committee.

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.

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.

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 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.