CUPA-HR eNews
PUBLIC POLICY NEWS YOU CAN USE
August 19, 2009
E-Verify Federal Contractor Rule Expected to Take Effect September 8, Healthcare Reform Unable to Meet Summer Goals, Discussions on EFCA Alternatives Continue, Obama Announces New NLRB and EEOC Appointments
By Josh Ulman, chief government relations officer, and Christi Layman, manager of government relations, CUPA-HR
E-Verify Federal Contractor Rule Expected to Take Effect September 8
After several delays, Federal Acquisitions Regulatory Councils says it will move forward with the federal contractor E-Verify final rule on September 8. The rule will require federal contractors and subcontractors to use E-Verify, the federal government’s system for electronically verifying work authorization, in addition to the existing I-9 requirements. Any federal contracts awarded on September 8 and thereafter will contain the clause requiring the use of E-Verify. The rule provides contractors with a limited time to enroll in the E-Verify program and higher education employers will need to use E-Verify for all employees that are working on the government contract. While there is a pending legal challenge to the rule, litigants anticipate a decision by early September, with most expecting that the court will uphold the rule.
The federal contractor rule and the government’s need to reauthorize E-Verify by September 30 inspired the first immigration reform hearings of this Congress. After President Obama kicked off the comprehensive immigration reform discussion in late June, Sen. Chuck Schumer (D-NY), chairman of the Senate Judiciary Committee’s Subcommittee on Immigration, Refugees and Border Security, began hearings on the topic. Schumer plans to introduce immigration legislation later this year.
On July 21, Schumer held a hearing entitled “Ensuring a Legal Workforce: What Changes Should be Made to Our Current Employment Verification System.” Both members of Congress and witnesses at the hearing discussed the problems with the current E-Verify system. Mike Aytes, acting deputy director of Citizenship and Immigration Services, testified that the Administration supports E-Verify and outlined the how the agency is working to improve the system, such as the photo screening tool.
Sen. Schumer made it clear that whether a final comprehensive immigration bill would use the current E-Verify system or an entirely new system, he intends to include a biometric component to create a “truly effective employment verification system” that “prevents employers from hiring illegal workers.” While many of the witnesses testified on the need for a biometric component, concerns were also raised over cost and privacy issues. Schumer did not say if his proposal would necessarily require workers to carry an identification card. Schumer reportedly plans to have draft legislation ready for subcommittee consideration some time after Labor Day.
Meanwhile, the House has also begun hearings on immigration and the E-Verify system. On July 23, the House Oversight and Government Reform Committee’s Subcommittee on Government Management, Organization and Procurement held a hearing, at which the possibility of charging U.S. employers a fee for using the system was discussed. Rep. Jackie Speier (D-CA) made the suggestion and Subcommittee Chair Diane Watson (D-CA) and Ranking Member Brian Bilbray (R-CA) did not express any initial concerns with the idea. Should Congress try to enact a fee for the use of E-Verify, the business community would object strongly, as employers already incur costs to use the system with training and time.
The U.S. Chamber of Commerce testified at the hearing stating for the first time that it would support E-Verify, the New Employee Verification Act or some other government verification program as long as specific concerns of the business community were addressed. On August 12, CUPA-HR joined the American Council on Education and other employer groups, including the U.S. Chamber of Commerce, in sending a letter to Congress to lay out the specifics on what a government verification program would need to include in order to receive our support and expressing our desire to work with them to come up with a workable option. Hearings are expected to continue throughout the fall on E-Verify and comprehensive immigration reform.
Healthcare Reform Unable to Meet Summer Goals
The healthcare debate was extremely contentious throughout July, splintering the Democratic caucus and forcing both bodies of Congress to abandon their goals of voting on a bill prior to Labor Day.
In the House, the Education and Labor Committee and the Ways and Means Committee both completed markups of their portions of the America’s Affordable Heath Choices Act (H.R. 3200) by July 17, leaving the Energy and Commerce Committee to act. Shortly after the Energy and Commerce Committee began its markup, concerns were raised by Blue Dogs, a group of conservative Democrats, on the cost of the bill and the inclusion of a government plan that pays Medicare rates. Heated discussions followed between committee chairman Henry Waxman (D-CA) and members of the Blue Dog Coalition ultimately resulting in a deal. The committee eventually passed the bill by a vote of 31-28 late on July 31 after most of their congressional colleagues had already headed back to their districts to begin their August recess, despite 60 non-essential, non-controversial amendments that had not yet been considered.
Four Blue Dog Democrats voted with their caucus in favor of the bill and five Democrats joined all the Republicans in opposition. The five Democrats who voted against the bill were Rep. Bart Stupak (D-MI), Rep. Jim Matheson (D-UT), Rep. Charlie Melancon (D-LA), Rep. John Barrow (D-GA) and Rep. Rick Boucher (D-VA). However, discussions of the Blue Dog deal are ongoing after 82 members of the Progressive Caucus sent a letter to the Speaker objecting to the deal and threatening to vote against the bill if changes are not made. In particular, the Progressive Caucus is opposed to provisions in the deal that would allow healthcare providers to negotiate payment rates from the new government-operated health plan instead of being forced to accept payments based on Medicare reimbursement rates.
It is unclear what adjustments will be made to the bill, in light of the latest objections raised. Now House leaders will begin to assemble a complete House bill from the three versions voted out of the three committees over the August recess. However, there will be some changes made in early September after the Energy and Commerce Committee meets again to consider the non-essential, non-controversial amendments they were not able to get to in their July markup, likely postponing the formation of a final House bill and floor vote until later in September.
In the Senate, the Health Labor and Pensions Committee on July 15 finally concluded its lengthy, multi-week markup of the Affordable Health Choices Act with a 13-10 party-line vote. The Finance Committee continues to meet in private bipartisan discussions to craft its own bill. The “group of six” senators negotiating the bill on behalf of the committee plan to meet throughout the August recess, which began for the Senate on August 8, in hopes of beginning to mark up a bill in committee when the Senate returns in September. However, Senate Majority Leader Harry Reid (D-NV) and President Obama have been pressuring Finance Committee Chairman Max Baucus (D-MT) to set a date to cut off negotiations and turn the issue over to the full committee if a deal cannot be reached. Reports surfaced that Baucus had set a hard and fast date of September 15 to complete the bipartisan discussions, causing outrage from the Republican senators saying they will not agree to artificial deadlines. Baucus has since backed away from the deadline, saying that he plans to discuss a stopping point with the group of six negotiators and that they will make that decision together.
While it is unclear when the Finance Committee will conclude the work on its bill, some senators predict they may be able to have a bill for the president to sign by Thanksgiving – however, everything will depend on the timing of the Finance markup and what issues could arise as the Senate tries to merge its two bills for a vote and then work with the House in conference to combine a House and Senate bill.
CUPA-HR will continue to update members on the progress of the healthcare reform debate.
Discussions on EFCA Alternatives Continue
n recent weeks, the discussions of a group of key Democratic senators on an alternative to the Employee Free Choice Act (EFCA) have caught the attention of businesses and organized labor alike. After it became clear to Democratic leaders this spring that they do not have the votes in the Senate to move forward with a vote on EFCA, several senators including Sen. Specter, Sen. Harkin, Sen. Pryor and Sen. Brown began exploring alternatives to EFCA that might attract 60 votes. EFCA would make it easier for unions to organize by virtually eliminating secret ballots as a method for determining whether a private-sector employer will be unionized and would allow government-appointed arbitrators to set the terms of an initial contract if the union and employer did not come to agreement within 120 days.
The latest discussions about potential changes to EFCA reportedly include removing the card-check provision and including one or a variety of provisions like quick elections, voting by mail or electronically, access of non-employee union organizers to the workplace, greater restrictions on employer free speech, modifying the interest arbitration provisions to use “baseball” style final offer arbitration, or lengthening the time period before arbitration can be invoked.
Neither organized labor nor the business community have embraced any of these proposals. Business has expressed concerns that the alternatives are just as troubling as EFCA, and labor has suggested the alternatives are unacceptable because they are not true to EFCA’s core principals.
The Democratic senators likely will not come out with any specific legislation until the fall, and as of right now it is unclear that any of the changes they have discussed would change the minds of key senators that currently oppose the bill. Organized labor may push Democratic leadership to call for an up or down vote on EFCA regardless of any alternative discussions to get members of Congress on record now and then wait until next Congress to push EFCA again, hoping for more robust numbers in favor of the bill. CUPA-HR will continue to monitor the discussions.
Obama Announces New NLRB and EEOC Appointments
In July, President Obama submitted the names of three nominees for Senate confirmation to fill vacancies at the National Labor Relations Board (NLRB). President Obama had previously announced his intent in April to nominate Craig Becker and Mark Pearce to the board to fill two vacant Democratic seats. Becker is currently counsel for the SEIU and the AFL-CIO, and Pearce is a union-side labor attorney. On July 9, the president announced Brian Hayes as his nominee to fill the remaining Republican position. Hayes currently serves as Republican labor counsel to the Senate Health, Education, Labor and Pensions Committee. Prior to his work with the committee, he was in private legal practice for over 25 years as a management-side labor attorney.
The Senate has yet to act on any of the NLRB nominations, but when it does, the Becker nomination may complicate the confirmation process. The business community has expressed serious concerns with his nomination due to his current role as counsel for SEIU and AFL-CIO, as well as his views in several controversial articles he has published.
In addition, on July 16, the president announced his nomination of Jacqueline A. Berrien as chair of the Equal Employment Opportunity Commission (EEOC). Berrien is currently the associate director-counsel of the NAACP Legal Defense and Educational Fund and was previously a staff attorney with the American Civil Liberties Union. She also served on the adjunct faculty of New York Law School. Berrien is a graduate of Oberlin College and Harvard Law School. If she is confirmed, Berrien will take over the leadership of the Commission from Stuart Ishimaru, who was named acting chair when President Obama took office on January 20. With the addition of Berrien, one Republican vacancy remains on the five-member commission.
