CUPA-HR eNews
Public Policy News You Can Use – July 16
July 16, 2009
EEOC Approves Proposed Regulations to the ADA Amendments Act
On June 17, 2009, the Equal Employment Opportunity Commission (EEOC) approved a notice of proposed rulemaking (NPRM) for the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA, which broadens the coverage of individuals under the ADA, became effective January 1, 2009. The EEOC had originally tried to approve proposed regulations in December, prior to the Act’s effective date, but the five-member commission had one vacancy, thus leading to a stalemate with a 2-2 vote, when Democratic Commissioners Stuart Ishimaru and Christine Griffin voted against the proposal.
Then on June 5, 2009, Republican Commissioner Naomi Earp, the former chair during the Bush Administration, resigned from the EEOC leaving a second vacancy and allowing the commission to move forward with a new NPRM, supported by the Democratic commissioners. Stuart Ishimaru, who was named acting chair by President Obama when he came into office on January 20, chaired the June 17 meeting where the Commission approved the new NPRM by a vote of 2 to 1. Republican Commissioner Constance Barker voted against the proposal and expressed concerns that parts of the revised NPRM are not supported by the ADAAA or its legislative history.
The EEOC will publish the NPRM for comment after it is reviewed by other federal agencies and approved by the Office of Management and Budget.
Disagreements Bog Down Progress of Health Care Reform
As the days slip by, Congressional Democratic leadership’s goal of considering health care reform bills on the House and Senate floor before the August recess looks more and more difficult to attain. Three pieces of draft legislation are being crafted in Congress.
Three House committees — Education and Labor, Energy and Commerce, and Ways and Means — have been working in tandem to produce the “Tri-Committee” bill. All three committees held hearings on the draft bill the last week in June. The House bill has been able to remain on schedule for the most part because the committee chairmen have largely been working only with key Democrats to shape the bill around the president’s proposal, without the involvement of any Republicans. However, the House may have hit its first speed bump on July 9 when 40 “Blue Dogs,” a group of conservative Democratic representatives, demanded changes to the bill citing concerns with, among other things, the bill’s cost and inclusion of a government plan that pays Medicare rates.
The committees had planned on releasing the language of the final bill on July 10 and begin marking it up on July 13, but instead continue to adjust the language to ease the concerns of the Blue Dogs and now hope to finalize the bill and mark it up in the next week so it can reach the floor for a vote before the recess.
On the Senate side, two bills are being crafted simultaneously by the Senate Health, Education, Labor and Pensions (HELP) Committee and the Senate Finance Committee. The HELP Committee has made the most progress with its draft, and is the only committee that has begun marking up a bill. However, the HELP markup that began on June 17 was only expected to last two weeks and is now running into its fourth week. The HELP Committee deliberations have been largely partisan. On July, HELP Republicans offered amendments in markup to eliminate inclusion of a public plan and a pay-or-play mandate that would requires employers to provide health insurance or pay an annual fee of $750 per employee. HELP Democrats fended off these efforts and both provisions remain in the bill.
The Senate Finance Committee veered from the other committees and has worked closely with Republicans to craft a bipartisan bill, even delaying a June markup of its draft to ensure bipartisan agreement. Finance committee members have made significant progress but have yet to finalize their language or set a new date for a markup, causing Majority Leader Reid (D-NV) to insert himself in the discussions. It has been widely reported that Reid told Chairman Baucus (D-MT) that his bipartisan negotiations may cost more Democratic votes than they will gain Republican votes and is applying pressure on Baucus to wrap up committee discussions so the entire Senate can decide on the remaining provisions on the Senate floor.
Thus far, however, Baucus appears to be unfazed and continues to work with Republican committee members on a consensus bill. Senate Democratic leadership hopes to combine the two Senate bills, after the committees complete their markups, and bring a single bill to the Senate floor for a vote before recess. While the timetable is getting tighter and tighter for the Senate to do so, the Senate is not scheduled to break for August recess until August 7, a week later than the House, giving them a couple more days to reach their goal.
If you are interested in more detail or comparisons of the various health care proposals, even beyond the three congressional proposals, the Kaiser Family Foundation has a section on its website that allows you to view and compare various provisions in the different proposals. CUPA-HR will continue to monitor the progress of all three bills.
Labor Secretary to Abolish ESA
The Department of Labor recently announced plans to eliminate the Employment Standards Administration as of November 8, 2009. ESA currently houses four sub-agencies, the Wage and Hour Division (WHD), the Office of Labor-Management Standards, the Office of Federal Contract Compliance Programs, and the Office of Workers’ Compensation Programs. After November 8, these sub-agencies will report directly to the Secretary of Labor, Hilda Solis, and function as individual organizations within DOL. Secretary Solis promised to “reinvigorate” the WHD, which oversees the Fair Labor Standards Act and the Family and Medical Leave Act, and step up enforcement of worker protection laws throughout DOL.
Thus far, WHD has already begun the process of hiring additional field investigators and expanding the agency’s staff by more than a third. The reorganization is likely the next step on the Secretary’s agenda to more efficiently streamline the administration within DOL to achieve her goals of increased enforcement. This will be the first major reorganization of these agencies since ESA was established in 1971.
DHS Regulatory Action Encounters a Senate Roadblock
In recent weeks, the federal government has made significant announcements and stepped up enforcement with regards to employment eligibility, but not all of the changes have been welcomed by Congress.
On June 8, 2009, the Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the Administration will push ahead with full implementation of the Federal Acquisitions Regulatory (FAR) Council’s final rule requiring federal contractors and subcontractors use the E-Verify system to check employee work authorization. Implementation of the rule had been delayed four times because of an ongoing legal challenge and the Administration’s continued review of the rule. The rule is now scheduled to apply to government contracts starting on September 8, 2009. If those challenging the rule are successful in their lawsuit, however, DHS may be forced to further delay implementation or withdraw the rule.
In the same June 8 press release, Secretary Napolitano also announced that DHS will be proposing a new regulation rescinding the 2007 no-match rule setting forth the safe harbor procedures for employers who receive no-match letters. The Social Security Administration (SSA) sends the employer correction request letters, or no-match letters, to employers if the Social Security numbers the employer provided on W-2 forms do not match SSA records for those employees. The 2007 no-match rule was blocked by the court, after many employer groups challenged the rule, and never took effect. As of June 8, the Department of Justice (DOJ) had begun the process for withdrawing the rule and winding down the no-match litigation.
However, on July 9, the Senate adopted an amendment to the fiscal year 2010 Homeland Security appropriations measure by unanimous consent that would prohibit DHS funds from being used to rescind the no-match rule. By essentially reinstating the Bush Administration’s no-match rule within a day of Napolitano’s announcement, the Senate is sending a clear message to the Administration that they are serious about instituting stronger immigration laws. It is unclear how DOJ will proceed in light of the Senate’s action.
The Senate also approved amendments that would authorize E-Verify permanently, require its use by federal contractors (this seems aimed at ensuring that DHS moves forward with the federal contractor rule) and allow employers to verify employment eligibility for all employees, not just prospective employees. The Senate passed the appropriations bill late on June 9 and will now likely move to a conference committee with the House in the coming days to seek their approval on the Senate changes and reconcile the differences between the two bills. The House-passed bill only authorized the E-Verify program for two years, rather than extending it indefinitely.
Another significant development for employers came on July 1, 2009, when DHS launched a major enforcement initiative to crack down on employers who hire illegal workers. DHS served “Notices of Inspection” to 625 businesses, after only issuing 503 last year, and has begun the process of auditing the companies’ I-9 forms. CUPA-HR will continue to monitor these developments closely.
Comprehensive Immigration Reform Discussions Begin
On June 25, 2009, President Obama held a summit meeting at the White House with members of Congress and various Administration officials to initiate discussion on an overhaul to the nation’s immigration laws. The meeting covered individual priorities for a bill, how to avoid the failings of the last attempt at comprehensive immigration reform and the current political climate. Attendees left the meeting with wide-ranging predictions on whether immigration reform can be accomplished in this Congress.
Senator Charles Schumer (D-NY), chairman of the Judiciary Immigration Subcommittee, is currently working on draft legislation that he hopes to have ready for committee consideration by Labor Day. Some of the provisions in his bill include securing federal government control of U.S. borders, a requirement that all illegal immigrants must register their presence with the government and begin a rigorous process to earn citizenship or face deportation, and instituting the use of biometrics, like fingerprints, to verify the immigration status of workers. Schumer plans to begin hearings on various immigration issues this month.
Changes in Washington - Franken Seated, Kline New Ranking Member on House Education and Labor Committee
After eight months of delays, on July 7, 2009, Al Franken (D) was sworn in as the new freshman senator for the state of Minnesota. Former Senator Norm Coleman (R) was initially up by a small margin after the November election triggering a recount required by Minnesota state law that left Franken with a small lead. Coleman challenged the recount results in the courts, but the battle ended on June 30 when the Minnesota state Supreme Court ruled unanimously that Al Franken was entitled to an election certificate. The seating of Franken as the 58th Senate Democrat, plus two Independents that routinely vote with Democrats, brings the party to a 60-vote majority needed to clear a procedural vote – known as cloture – on most legislation.
Democratic leaders and the president, however, still face challenges in moving controversial legislation through the Senate. Senators Robert Byrd (D-WV) and Edward Kennedy (D-MA) have both been absent with serious health issues, and it is unclear at this point when or if either one will be healthy enough to return. In addition, many conservative Democrats have made it clear in recent months that they should not be considered an automatic vote on several high-profile pieces of legislation being considered in Congress right now, such as health care reform, climate change, the Employee Free Choice Act and others. So while the Democrat goal of a 60-vote majority has been met, it may not bring the sweeping changes many had anticipated – at least not in the short term.
Another significant change on the House side has led to a cascade of new Committee and Subcommittee Republican leadership positions. On June 2, President Obama tapped House Armed Services Committee Ranking Member John McHugh (R-NY) to become the Secretary of the Army. A week later, the House Republican Steering Committee voted to appoint Howard “Buck” McKeon (R-CA) to be the new Armed Services Ranking Member, leaving his Ranking Member position on the House Education and Labor Committee vacant. Then on June 17, the Steering Committee appointed Rep. John Kline (R-MN) to that position as the lead Republican on Education and Labor. Rep. Tom Price (R-GA) was then appointed to take over as the Ranking Member of the Health, Employment, Labor and Pensions Subcommittee, previously held by Kline, and Rep. Cathy McMorris Rodgers (R-WA) became the Ranking Member of the Workforce Protections Subcommittee, previously held by Price.
