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Washington Labor & Employment Wire » Social Security

Loophole Elimination and Verification Enforcement Act (”LEAVE Act”) (H.R. 6789)

Core Provisions: This legislation is intended to prohibit activities that assist, encourage, direct or induce unauthorized aliens to reside in the United States. Among many other provisions, the LEAVE Act would make the E-Verify system permanent and would mandate verifying work eligibility of new hires using E-Verify. Employers of more than 250 individuals, certain federal contractors and subcontractors, and federal agencies would be required to verify the eligibility of new hires within one year of enactment, with other employers being phased into the requirement two to four years after enactment. All employers would also be required to use E-Verify to confirm eligibility of all current employees by four years after enactment. An employer would not be liable for hiring an unauthorized alien if the hiring was due to an unknown E-Verify error as long as the employer terminated the unauthorized alien upon being informed of the error.

The LEAVE Act would also require the Commissioner of Social Security to notify employers annually of employees whose Social Security numbers do not match their name or date of birth in the Commissioner’s records, and the employer would then have 30 days to correct the mismatch or terminate the employee. The Commissioner would also monitor employment-based information for indicia of identity theft, such as an individual with concurrent earnings from more than one employer over an extended period.

The legislation also includes provisions in many different areas intended to deter illegal immigration and better enforce existing immigration laws. These include provisions protecting “identity security,” prohibiting residential mortgages and rentals to illegal aliens, denying Social Security credit for individuals who were unlawfully present at the time of the work, prohibiting illegal aliens from obtaining financial services, and increasing border and law enforcement efforts.

Status: Rep. Miller (R-CA) introduced the LEAVE Act on August 1, 2008 and it was referred to the House Judiciary, Oversight and Government Reform, Education and Labor, House Administration, Financial Services, Ways and Means, and Homeland Security Committees.

House Subcommittee Hears Testimony from Proponents and Critics of E-Verify

On June 10, 2008, the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing on “Electronic Employment Verification Systems: Needed Safeguards to Protect Privacy and Prevent Misuse.” Most of the testimony concerned the current E-Verify system, and the provision in the proposed Secure America Through Verification and Enforcement Act (”SAVE Act”) (H.R. 4088) that would make employer participation in the E-Verify program mandatory. Administered in part by the Department of Homeland Security (DHS), the E-Verify system requires employers to submit employees’ Social Security numbers and identifying information. Where employees’ information is not consistent with Social Security Administration (SSA) records, employees have ten days to correct the mismatch, or the employer is required to terminate the employee.

Rep. Shuler (D-NC) and Rep. Calvert (R-CA) testified in favor of extending the E-Verify program. In response to critics of widespread mandatory implementation of the program, Rep. Shuler noted that E-Verify is currently required by law to varying degrees in Arizona, Colorado, Georgia, Idaho, Minnesota, Mississippi, North Carolina, Oklahoma, and Utah, and has been largely a success. Glenda Wooten-Ingram, an experienced Director of Human Resources at hotels in the Washington D.C. area, praised E-Verify for making it easier for employers to verify quickly and inexpensively employee work eligibility, and to deter ineligible job applicants. Jonathan Scharfen, acting director of U.S. Citizen and Immigration Services, testified in favor of E-Verify, and described recent improvements to the system. However, when questioned by Committee Chairman Conyers (D-MI), Scharfen admitted that the program only rarely results in prosecutions against employers for knowingly hiring illegal immigrants.

Carolyn Shettle, Senior Study Director at Westat, testified about the results of its study of the E-Verify program, which was commissioned by U.S. Citizenship and Immigration Services. Shettle reported that common types of employer noncompliance include using E-Verify to screen job applicants, and taking prohibited adverse actions against employees while they are contesting preliminary mismatches by, for example, restricting work assignments or delaying training.  Westat’s recommendations for improving E-Verify include addressing the fact that work-authorized foreign-born workers are significantly more likely to receive tentative non-confirmations than U.S.-born workers.

Witnesses who testified against extending the E-Verify program included Christopher Williams, Director of the Working Hands Legal Clinic, and Timothy Sparapani, Senior Legislative Counsel of the American Civil Liberties Union, both of whom cited Westat’s findings as evidence of E-Verify’s flaws. Williams emphasized E-Verify’s “unacceptably high error rates,” and employer non-compliance with program rules. Sparapini asked Congress to block any proposal for mandated employment eligibility verification that does not adequately provide workers with a “fair and just set of administrative and judicial procedures to resolve data errors promptly and efficiently.”

Rep. Johnson (R-TX) and Rep. Giffords (D-AZ) testified in favor of competing legislation, the New Employee Verification Act of 2008 (”NEVA”) (H.R. 5515), which would provide an alternative electronic verification system. Rep. Johnson testified that it is inappropriate that DHS, an agency responsible for tracking terrorists, maintains E-Verify databases on the employment histories of U.S. citizens, especially when SSA has always had the responsibility to track the earnings of American workers. Rep. Johnson asserted that the NEVA electronic verification system “builds upon the lessons learned from E-Verify,” and noted that his legislation is supported by employer groups including the National Association of Manufacturers, Society for Human Resource Management, National Association of Home Builders, and National Federation of Independent Business.

The Incentives for Older Workers Act (S. 2933)

Core Provisions:  This bipartisan bill provides incentives to older Americans and employers to encourage the hiring and retention of workers 55 years of age or older.  To combat the anticipated surge of baby boomer retirements which, according to the Senate Special Committee on Aging, could lead to a labor shortage of up to five million workers in a decade, the bill provides tax credits to employers hiring older workers and provides benefits to older workers opting for reduced hours rather than retirement. The bill mitigates reductions in pension and Social Security benefits for older workers who work reduced hours (as opposed to retiring completely).

S. 2933 would establish a new entity within the Labor Department - the National Resource Center on Aging and the Workforce - to cater to older workers.  The bill also provides for representation of older workers on state and local workforce investment boards and mandates that states devote five percent of Workforce Investment Act funds to older workers.

Status: S. 2933 was introduced in the Senate by Sen. Smith (R-OR) on April 29, 2008, and was referred to the Senate Committee on Finance.

Social Security No-Match Letter Legislation (Unnamed bill, S.2710)

Core Provisions: This legislation authorizes the Department of Homeland Security to use an employer’s failure to timely resolve discrepancies with the Social Security Administration after receiving a “no match” notice as evidence that the employer violated section 274A of the INA. S.2710 provides that an employer is deemed to have “constructive knowledge” an employee is not authorized to work in the United States if the employer:

(A) receives a Social Security no-match letter notifying the employer that the Social Security Administration has been unable to match the employee’s name with the Social Security number provided by the employer; and

(B) fails to take the corrective action suggested by the Social Security Administration or the Department of Homeland Security within 90 days of receiving the letter described in subparagraph (A).

The bill also states that secretary of homeland security shall promulgate necessary regulations related to the amendment.

Status: On March 5, 2008, Sen. Sessions (R-AL) introduced S.2710. The bill was read the second time on March 6, 2008, and placed on the Senate Legislative Calendar under General Orders, Calendar No. 595.

Worker Empowerment Act (H.R.2202, S.1330)

Core Provisions: This legislation would amend the Social Security Act to provide unemployed workers who earned less than the Social Security payroll tax cap 50 percent of lost wages - up to $10,000 per year for two years. The Internal Revenue Code would be amended to tax employers 0.06 percent of paid wages to fund the new benefit. The program would be financed by the federal government and administered by state governments.

Status: H.R.2202 was introduced by Rep. McDermott (D-WA) on May 8, 2007 and referred to the House Committee on Ways and Means. Sen. Schumer (D-NY) introduced S.1330 on May 8, 2007 and it was referred to the Finance Committee.