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

Employers using E-Verify to authenticate employees’ work authorization status are subject to the Three-Day Rule, which requires an employer to create an E-Verify case no later than three business days after an employee first works for pay (commonly referred to as the Hire Date). Confusion sometimes arises, however, because the Hire Date differs depending on whether the E-Verify case is created before or after the first day an employee works for pay. To clarify the matter, United States Citizenship and Immigration Services (USCIS) created a webpage explaining how to determine the Hire Date, and how to calculate the compliance deadline.  Continue reading this entry at Littler's Global Immigration Counsel blog. 

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On Thursday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) released a framework for comprehensive immigration reform. Although a bill has yet to be introduced, the Senators outlined their “four pillar” reform strategy in a Washington Post opinion column.  This plan would include “requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.”

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The Wall Street Journal reports that a mandatory biometric identification card for U.S. citizens and legal residents could be included in a comprehensive immigration reform bill being spearheaded by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC). The card would contain standard identifying information, but would also contain a biometric identifier, e.g., fingerprints. Schumer has previously proposed such a card to replace E-Verify, the federal electronic employment verification system.  Continue reading at Littler's Global Immigration Counsel blog.

Photo credit:  David Franklin

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.  Continue reading at Littler's Global Immigration Counsel blog.

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On October 28 President Obama signed into law the Department of Homeland Security Appropriations bill (H.R. 2892), a measure that includes provisions extending the E-Verify employment verification program by three years, and allocating $137 million to the program for its operation and improvement. In addition, the legislation extends the EB-5 investor visa program, which provides visas to individuals who invest at least $1 million in a new commercial enterprise which will benefit the U.S. economy and create at least 10 full-time jobs. The visa programs for religious workers and medical students are also extended. The final version of this appropriations bill omitted more stringent provisions that would have made E-Verify and the EB-5 investor program permanent, and allowed employers to verify the employment status of current employees. The bill appropriates $139 million to the U.S. Immigration and Customs Enforcement (ICE) to hire 100 new special agents to conduct worksite enforcement investigations and employer audits.

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On Tuesday the Senate approved by a vote of 79-19 the conference report for the Department of Homeland Security Appropriations bill (H.R. 2892) that includes provisions extending the E-Verify employment verification system and other visa programs. The House approved the conference report on October 15.

The bill will allocate $137 million to the E-Verify program – which is extended by three years under this bill – for its operation and improvement. In addition, the legislation extends the EB-5 investor visa program, which provides visas to individuals who invest at least $1 million in a new commercial enterprise which will benefit the U.S. economy and create at least 10 full-time jobs. The visa programs for religious workers and medical students are also extended by this legislation.

Notably, the Senate conference report dropped more stringent E-Verify provisions that the Senate had approved in July.  Those provisions would have made the E-Verify and EB-5 programs permanent, and allowed employers to verify the employment status of all employees.

The president is expected to sign the DHS appropriations bill into law.

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Rep. Luis Gutierrez (D-IL), chair of the Congressional Hispanic Caucus Immigration Task Force, has outlined a set of core principles that he plans to include in a comprehensive immigration reform bill. In a press release issued October 13, Gutierrez stated:

We simply cannot wait any longer for a bill that keeps our families together, protects our workers and allows a pathway to legalization for those who have earned it. It is time we had a workable plan making its way through Congress that recognizes the vast contributions of immigrants to this country and that honors the American Dream. I am preparing such a plan, and will introduce it in the near future.

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The Department of Homeland Security (DHS) has published in today’s Federal Register a final rule rescinding the controversial “no-match” rule. The rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – created safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. In essence, the rule would have required that no-match letters or ICE notices be accompanied by a set of procedures for employers to follow to address any flagged identification discrepancies. Following the prescribed steps would allow an employer to avoid a finding that it had constructive knowledge of a worker’s illegal status, thus incurring civil and criminal liability under the Immigration Reform and Control Act of 1986.

According to DHS, the agency will instead focus its resources on alternative programs to reduce unauthorized employment, including E-Verify and ICE Mutual Agreement Between Government and Employers (IMAGE), among other programs.

The final rule is effective November 6, 2009.

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USCIS has released a “Supplemental Guide for Federal Contractors” (PDF) regarding the E-Verify program.  The guide contains information concerning:

• applicable regulations;
• instructions on verifying new and existing employees via Form I-9;
• E-Verify enrollment and participation as a federal contractor;
• exemptions and exceptions for qualifying contractors; subcontractors, independent contractors and affiliates;
• enrollment instructions for organizations that qualify for exceptions;
• enrollment instructions for contractors not yet enrolled in E-Verify; and
• instructions for contractors already enrolled in E-Verify.
   

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With the rejection of an 11th–hour appeal, a Maryland district court judge has permitted the new E-verify requirements for federal contractors to become effective September 8, 2009. Federal agencies are now permitted to require federal contractors to use E-Verify to confirm the work eligibility status of their employees. 

For more information, see Littler's ASAP:  Federal Contractors: Be Aware of New E-Verify Requirements in Contracts by Jorge R. Lopez, Joshua Roffman, Aimee Clark Todd and Russell C. Ford. 

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As reported by Daily Journal of Commerce, business groups have appealed the August 25 decision by a federal district court in Maryland upholding the E-Verify Federal Contractor Rule. As previously discussed, the rule is set to take effect on September 8, 2009. If government officials do not voluntarily postpone the effective date, lawyers for the business groups have indicated that they will ask the courts to do so.  Continue reading at Littler's Global Immigration Counsel blog.

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The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. The No-Match rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – provides that No-Match letters be accompanied by a set of procedures for employers to follow to address the flagged identification discrepancies and avoid a finding that they have constructive knowledge of a worker’s illegal status and thus civil and criminal liability under the Immigration Reform and Control Act of 1986. Shortly after this rule was introduced, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a lawsuit challenging, among other things, the sufficiency of the No-Match letter to put an employer on notice of a potential illegal hire. A U.S. District Court in California granted the plaintiff’s preliminary injunction blocking the rule’s enforcement. In 2008, the DHS issued a supplemental final rule clarifying certain aspects of the No-Match rule, but did not change the safe-harbor procedures. Neither the final No-Match rule nor the supplemental final rule have been enforced.

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Legislation introduced in both the House and Senate aimed at reducing illegal immigration would expand the E-Verify employment verification system, and require its use by all employers. The Secure America through Verification and Enforcement Act (SAVE Act) (H.R. 3308, S. 1505) was originally introduced in 2007, but died in committee. The current bills introduced by Rep. Heath Shuler (D-NC) and Sen. Mark Pryor (D-Ark.) remain substantially similar to the earlier versions. Essentially, both bills contain three components to curb illegal immigration, the second of which would impact employers. Both bills would mandate the use of E-Verify, although the Senate bill provides for a slightly longer timeframe in which all employers must be in compliance with the Act.

Under the terms of the House version of the SAVE Act, over a four-year period all employers would be required to use E-Verify to check the employment eligibility of their potential and current hires. The Senate version would allow five years for compliance. The federal government, federal contractors, and large employers (those with more than 250 employees) would be required to use E-Verify to check the status of applicants within one year of the bill’s enactment under the House version, and two years for the Senate. Smaller employers would be phased into the system more gradually. Companies employing between 100 and 250 employees would be required to use E-Verify within two years (three under the Senate bill); those with at least 30 but few than 100 employees would have three years to comply with the program under the House bill, and four under the Senate version; all other employers would have to be in compliance within four years (five for Senate SAVE Act) of the bill’s enactment. All employers would also be required to verify the employment eligibility of current employees within four years according to the terms of the House legislation, and five for the Senate’s.

The House version of the SAVE Act has been referred to the House Committees on Homeland Security, Judiciary, Ways and Means, Education and Labor, Oversight and Government Reform, Armed Services, Agriculture, and Natural Resources. The Senate companion bill has been referred to Senate Finance Committee.
 

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The following is a summary of the employment- and labor-related legislative and regulatory news for the weeks of July 5 and July 12, 2009:

Agency Changes

Obama announced his intent to nominate Jacqueline Berrien as Chair of the Equal Employment Opportunity Commission (EEOC).

Brian Hayes was nominated to be a Member of the National Labor Relations Board (NLRB). His nomination – along with those of the other two NLRB nominees – were sent to the Senate for consideration.

The Department of Labor’s Employment Standards Administration (ESA) will be abolished, and the leaders of the four sub-agencies within the ESA will report directly to the Secretary of Labor.

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Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Because, Schumer alleged, identification can be easily faked using stolen Social Security numbers, employers who accept documentation on good faith have no guarantees under the current system that they won’t be targeted by Immigration and Customs Enforcement (ICE) for hiring illegal aliens. Schumer has been a strong proponent of a biometric-based federal employment verification system. Schumer’s motion to table Sen. Sessions’ amendment was rejected by a vote of 53-44. The House of Representatives’ version of the DHS appropriations bill had included a 2-year extension of E-Verify, so it is uncertain at this point whether a limited or permanent E-Verify extension will be approved in the final appropriations bill.

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The following is a summary of the legislative and regulatory news for the weeks of May 31 and June 7, 2009:

Agency Changes

The Senate HELP Committee has approved the nomination of Jane Oates to lead the Department of Labor’s (DOL) Employment and Training Administration (ETA).

President Obama has announced his intent to nominate Harry Hoglander to serve another term on the National Mediation Board (NMB).

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A bill introduced by Rep. Gabrielle Giffords (D-AZ) would extend the E-Verify program through September 2014. The Employee Verification Amendment Act of 2009 (H.R. 2679) would also order a General Accounting Office (GAO) study to determine the cause of errors made by this employment verification system, and its effects on small businesses.

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The federal government has told a Maryland judge that it plans to delay for the fourth time the effective date of a rule requiring certain federal contractors and subcontractors to use the E-Verify program. The rule – which would amend the Federal Acquisition Regulation (FAR) to mandate that specified contractors use the electronic employee verification system for current and prospective hires – was initially issued on November 14, 2008, and was to take effect January 15, 2009. Due in part to a lawsuit challenging the legality of the rule, the implementation date was pushed to February 20, then again to May 21 and June 30. The government has requested a stay of the litigation so that the new administration can review the authority of the rule. Pursuant to this request, the government said it would move the start date of the rule until September 8, 2009. A formal announcement of this delay is expected to be published in the Federal Register.

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The following is a summary of the legislative and regulatory news for the week of April 19, 2009:

Discrimination in the Workplace

The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document on caregiving responsibilities.

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Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act of 2009 (H.R. 2028), will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.  Continue reading at Littler's Global Immigration Counsel blog.

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The following is a summary of the legislative and regulatory news for the week of April 12, 2009:

Agency Changes

President Obama plans to nominate Lorelei Boylan to serve as Administrator of the Department of Labor’s Wage and Hour Division. Obama also announced his intent to nominate Thomasina Rogers for Chair of the Occupational Safety and Health Review Commission.

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On April 16, 2009, the U.S. Department of Defense announced that the effective date of the Federal Contractor E-Verify Rule will be delayed until June 30, 2009. To that end, the federal government will include the new E-Verify clause in affected contracts on or after June 30, 2009. The government will also take steps to reach out to affected contractors to bi-laterally modify existing affected contracts on or after that date. Continue reading on Littler's Global Immigration Counsel blog.

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The following is a summary of the legislative and regulatory news for the week of March 8, 2009:

Discrimination in the Workplace

The Department of Health and Human Services has published its proposed rescission of the provider conscience rule.

EFCA/Labor-Management Relations

The Employee Free Choice Act (EFCA) was finally introduced in both the House and Senate.  Prior to its introduction, support for this measure already seemed to be waning.  Meanwhile, an alternative measure that lacks the contentious card-check provision was introduced.

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In a late session yesterday, the Senate voted to approve the $410 billion omnibus appropriations bill (H.R. 1105).  The House had approved this measure – which extends the E-Verify and EB-5 investor visa programs until September 30, 2009 – on February 25.  In addition to temporarily extending these immigration programs, H.R. 1105, which is a combination of nine appropriations bills held over from the Bush administration, provides $56.3 billion to the Department of Labor. This amount is more than $2 billion over what the Bush administration had allocated for this agency.

Although the E-Verify program was extended until September 30, Sen. Jeff Sessions (R-Ala.) had offered an amendment to the bill that would have extended E-Verify for an additional five years. This amendment was tabled by a vote of 50-47.

President Obama is expected to sign this bill shortly.

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The following is a summary of the legislative and regulatory news for the week of February 22, 2009:

Agency Changes

Hilda Solis was officially confirmed as the next U.S. Secretary of Labor.  President Obama has chosen Seth Harris to take the number two position at the Department of Labor (DOL).  Obama has also announced his plans to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE) and Janet Napolitano, Homeland Security Secretary, has named Esther Olavarria as Deputy Assistant Secretary for Policy. 

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Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009.

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On February 26, President Obama unveiled his proposed $3 trillion budget. A detailed summary can be found on the White House website. (pdf)  As expected, the budget includes increased funding for various agencies tasked with oversight of employers.

Of interest to employers, highlights of this proposal include the following:

• Funding of $110 million to continue expansion of the E-Verify program.
• Projected DOL discretionary funding increases of $12.7 billion for 2009, and $13.3 billion for 2010.
• Increased funding for the Occupational Safety and Health Administration (OSHA), “enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers.”
• Increased enforcement resources of the Wage and Hour Division “to ensure that workers are paid the wages that are due them.”
• Increased funding for the Office of Federal Contract Compliance Programs.
• The establishment of automatic workplace pensions. Under this plan, a system of automatic workplace pensions would operate alongside Social Security.  Employees would be automatically enrolled in workplace pension plans.  Employers that do not currently offer a retirement plan would be required to enroll their employees in a direct-deposit IRA account that is compatible with exiting direct-deposit payroll systems. Employees would be given the ability to opt out of this program.
• The provision of $145 million to the Justice Department’s Civil Rights Division to strengthen civil rights enforcement against racial, ethnic, sexual preference, religious and gender discrimination.
   

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As reported at Workforce.com, Rep. Ken Calvert, R-California, who authored the bill that established E-Verify, was unhappy that a provision requiring companies receiving stimulus funding to sign up for E-Verify did not survive in the $787 billion stimulus package. Representative Calvert stated that “there is no assurance that the jobs created will go to American workers,” and asserted that E-Verify was “stripped out of the bill without discussion or debate.” A separate provision, which would have reauthorized E-Verify, also was excluded from the final stimulus package.

Even though E-Verify did not make it into the stimulus package, Congress is likely to find a way to maintain the program (due to expire on March 6, 2009) until it can be addressed as part of a comprehensive immigration bill.

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The following is a summary of the legislative and regulatory news for the week of February 15, 2009.

Arbitration

The Arbitration Fairness Act of 2009 (H.R. 1020), if enacted, would invalidate most employment-related pre-dispute arbitration agreements.

Business Restructuring

The Eagle Employers Act (H.R. 989) was reintroduced.  This bill would provide employers with a tax incentive to create and maintain domestic jobs instead of outsourcing positions abroad.

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Immigration-related bills are being introduced at a rapid pace. While many of these bills are destined to languish in committee, the sheer volume of immigration legislation introduced by both parties barely two months into the new Congress increases the chance that at least one bill will eventually receive real consideration. The latest bill – Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096) – would amend the Immigration and Nationality Act to create an electronic employment eligibility verification system and a detailed employment verification process, expand the verification system to apply to previously hired individuals, and increase employer penalties for violations, among other things. If passed, this bill would amend the Immigration and Nationality Act to require E-Verify for all employers. The E-Verify system is currently voluntary, unless mandated by applicable state law.

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The nation’s economic troubles have inspired a number of new employment-related bills. One immigration bill seeks to promote hiring Americans by limiting the incentives for illegal aliens to move to the United States to live and work, while another bill would facilitate the hiring of foreign workers under the H-2B guest worker program. A third bill would provide employers with a tax credit for hiring unemployed veterans.

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Agency Changes

President Obama named Stuart Ishimaru to serve as acting chairman of the EEOC, and Christine Griffin as acting vice chairman.

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Discrimination in the Workplace

In the absence of EEOC regulations governing the Americans with Disabilities Act Amendments Act (ADAAA), which took effect January 1, two Department of Labor organizations have provided compliance guidance and practice tips for employers.

Employment Wage and Hour Law

The House passed the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12), two bills that will make it easier for employees to sue for wage discrimination.

Immigration

The Federal Government has agreed to delay the effective date of the E-Verify federal contractor regulation – which was announced in November – until February 20, 2009.
 

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The federal government has agreed to delay the effective date of the E-Verify federal contractor regulation announced in November until February 20, 2009. The delay raises the question of whether President-elect Obama will add the regulation to his rescission list once he takes office.

For more information on this development, see Littler's ASAP: Effective Date of E-Verify Federal Contractor Regulation Postponed Until February 20, 2009 by Jorge R. Lopez, Lisa A. Cottle and Joshua S. Roffman.

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Given the current economic crisis and other pressing issues facing the new president, sweeping immigration legislation is unlikely. Immigration policy in general is a contentious topic, so expect more piecemeal legislation as opposed to radical, across-the-board reform, as even in this economy there are areas where the shortages are not meeting our demographic needs, such as healthcare recruitment.

Some programs in need of reauthorization by March 6, 2009, however, will likely be extended under the new administration. These include the E-Verify program, Conrad 30 program for physicians working in medically underserved areas, EB-5 million-dollar investor program, and the Religious Workers program. Additionally, Obama has expressed support for a temporary increase in the H-1B visa program as a stopgap measure until immigration policy is overhauled to permit a greater number of foreign skilled workers to receive permanent visas to work in this country.

The extension of E-Verify is apt to include the appropriation of additional funds to make it more accurate and efficient. The Department of Homeland Security (DHS) is expected to step up its efforts to use the E-Verify system as a vehicle to police immigration compliance, in addition to pursuing criminal investigations and indictments against employers that knowingly employ illegal aliens. To that end, I-9 compliance and proactive review of immigration policies will be particularly important in the coming years.
 

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