Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The proposed biometric social security card would serve only as evidence of lawful work authorization, not proof of citizenship or lawful immigration status. It would include a photograph and an electronically coded micro-processing chip that would contain a unique biometric identify for the authorized card holder. Once the BELIEVE program is fully implemented – estimated to be about six years after the proposed bill’s enactment – employers would be required to swipe the cards from prospective employees through a card reader to confirm the cardholder’s identity and work authorization. During the transition period, employers would continue to comply with all current employment verification laws, including E-Verify. Employers would be allowed to voluntarily use the BELIEVE system before it is declared mandatory.

Under the BELIEVE system, employers would be required to swipe the biometric card of a prospective employee no sooner than the date of hire, and no later than the third business day after the employee has reported for duty, or no later than the first day following recruitment for employment or any time an employee is required to provide self-verification. The system would provide employers with a response within 24 hours. In the event of a denial, employers would be required to provide the employee with a written notice form (to be developed by the Department of Homeland Security (DHS)), stating the reason for denial, the right to contest the denial, and how to do so. The bill would direct the DHS and SSA to develop details of an administrative review process. Employees would be entitled to lost wages if it is ultimately determined that the denial was caused by erroneous system information and not by an act or omission by the employee. Additionally, employees would be entitled to sue their employers if the work authorization denial was caused by an act or negligence on the part of the employer. Employers, however, would be protected from liability for employment-related actions taken with respect to information provided by the BELIEVE system.

The bill would establish protections to prevent misuse of the BELIEVE system. In addition, the bill would direct the Government Accountability Office (GAO) to conduct a study every two years to evaluate the accuracy, efficiency, integrity, and impact of the system.

In terms of employer penalties, the proposed bill would increase civil monetary penalties by 300 percent for employers that knowingly hire an authorized worker, hire an illegal worker without verifying employment eligibility, continue to employ an unauthorized worker once the employer is made award of the worker’s work status, or violate the anti-discrimination protections related to employment authorization. The proposal would allow a mitigation of certain increased penalties for small employers, and an exemption from penalties for a first violation where the employer can prove it acted in good faith. Moreover, the proposal would include a safe harbor provision for employers that unknowingly hire or continue to employ unauthorized workers through a subcontractor.

One of the many fee sources used to pay for the BELIEVE system include an employment authorization system fee to be paid by all employers that seek to petition for an employment-related immigration benefit for non-citizen workers, and fees paid by employers for violations of the act itself.

In addition to the BELIEVE system, the proposed bill would establish provisions addressing egregious labor law violations against unauthorized workers. Under the terms of the proposal, victims of egregious labor violations would be provided with legal incentives to cooperate with law enforcement to report employers. These employers would face civil sanctions and prison sentences.

The proposed immigration bill would revise the work visa categories currently in place. For example, the proposal would include fraud and abuse protections for current temporary high-skilled work programs, including those established under H-1B and L-1 visas. With respect to lower-skilled workers, the bill would include provisions requiring businesses to seek citizen workers before resorting to foreign labor. In addition, the H-2A temporary agricultural visa would be amended to adopt the proposals set forth in the Agricultural Jobs, Opportunity, Benefits and Security Act (AgJOBS). Employers hiring non-agricultural seasonal workers under the H-2B program would be required to first seek out citizen employees, and to pay them wages greater than what is currently paid to workers in these positions.

The proposal also creates a new provisional visa category (H-2C) for non-seasonal, non-agricultural workers. Additionally, the proposed bill would create a Commission on Employment-Based Immigration for the purposes of studying the country’s employment-based immigration system and making recommendations.

In a probable attempt to garner bi-partisan support, the proposal calls for increased border security before any steps could be taken to allow current illegal aliens to apply for citizenship. Given the current focus on financial reform and the push for the passage of climate legislation, it is uncertain if this immigration bill, once formally introduced, will receive much attention this year.

Photo credit:  David Franklin

Economic Stimulus

On Thursday, the House Ways and Means Committee voted 24 to 13 along party lines in favor of its portion of the $825 billion economic recovery package. The bill (H.R. 598) that seeks to provide tax, health and unemployment relief now will be combined with other measures to form H.R. 1, the American Recovery and Reinvestment Act, which is expected to receive full House consideration this week.   H.R. 598 isn't available for complete publication, but its provisions are discussed in a House Ways and Means fact sheet. 

A controversial aspect of this bill for employers is the provision of funds for extended COBRA coverage for the unemployed. The bill would provide a 65 percent subsidy for COBRA continuation premiums for up to 12 months for individuals and their families who have been involuntarily laid off between September 1, 2008 and December 31, 2009. The continuation of health care coverage would last as long as 12 months. Those individuals who were terminated but did not elect COBRA coverage within 60 days as required by law would be given an additional 60 days to do so. This bill also extends COBRA coverage for older (at least 55 years old) and tenured (have been with the employer for at least 10 years) workers. These individuals would be able to maintain their COBRA coverage at their own expense until they become eligible for Medicare or are able to secure alternate employment.

Lawmakers who were concerned about the effect of the cost of continued COBRA coverage for employers offered a number of amendments to the bill, all of which were defeated.

Veterans’ Employment Rights

The Servicemembers Access to Justice Act of 2009 (S. 263) would amend title 38 of the U.S. Code to improve enforcement of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This bill, among other things, would make agreements to arbitrate a dispute regarding an employee’s USERRA rights unenforceable, except in cases where the agreement is formed after the dispute arises. Moreover, this act would not invalidate the provisions of a collective bargaining agreement. S. 263 would also enhance remedies for USERRA violations. Under this act, an employer found in violation could be liable for both compensatory and punitive damages, as well as attorney’s fees. In addition, this legislation clarifies that USERRA prohibits wage discrimination against a member of the armed forces, and provides for equitable relief when appropriate.

This bill was referred to the Committee on Veterans' Affairs.

Another bill introduced this month seeks to provide employers with an incentive to hire unemployed veterans. The Veterans Jobs Opportunity Act of 2009 (S. 274) would amend the Internal Revenue Code to provide a tax credit to employers that hire an unemployed veteran in 2009 or 2010. An “unemployed veteran” for the purposes of this bill is defined as a veteran who was discharged or released from active duty in the Armed Forces during 2008, 2009 or 2010, and has been receiving unemployment compensation under state or federal law for at least four weeks during the 1-year period ending on the hiring date. This amendment would apply to those hired after December 31, 2008.

This bill was referred to the Committee on Finance. 

Senior Workers

The Health Care and Training for Older Workers Act (S. 281) would, among other things, extend COBRA continuation coverage for certain older workers, and create employment and training programs for seniors. This bill would amend section 602(2) of the Employee Retirement Income Security act of 1974 (ERISA) and section 2202(2)(A) of the Public Health Service Act by inserting a “Special Rule for Certain Older Workers” provision that qualifies an employee for continuing health care coverage if that employee is at least the early retirement age as defined in the Social Security Act, but is not yet entitled to benefits under title XVIII of the Social Security Act based on age.

This bill was referred to the Senate Committee on Health, Education, Labor, and Pensions.

Employee Verification

The Employee Verification Amendment Act of 2009 (H.R. 662) would extend the pilot programs for employment eligibility confirmation, and provide funds to the Commissioner of Social Security and the Secretary of Homeland Security to acquire, install and maintain technological equipment and systems for the implementation of an employment verification confirmation system.

This bill was referred to the Committee on the Judiciary, in addition to the Committees on Education and Labor and Ways and Means.