CUPA-HR eNews

PUBLIC POLICY NEWS YOU CAN USE – September 16
September 16, 2009

E-Verify Federal Contractor Rule in Effect, CUPA-HR and ACE File Comments on Government Contractor Regulations, Fall Congressional Agenda, Obama Attempts To Revive Healthcare Reform, Timeline Unclear for Immigration Reform
By Josh Ulman, chief government relations officer, and Christi Layman, manager of government relations, CUPA-HR

E-Verify Federal Contractor Rule Now in Effect

After months of delays and a legal challenge from several employer groups, the federal contractor E-Verify rule took effect on September 8. The rule requires federal contractors and subcontractors to use E-Verify, the U.S. Department of Homeland Security (DHS)’s electronic employment verification system, to check the employment authorization of all new hires and re-verify the work authorization of current workers under a federal contract. All federal contractors, regardless of size, with contracts over $100,000 and subcontractors providing services worth more than $3,000 are covered by the rule.

Additionally, the rule makes prime contractors liable if subcontractors do not adhere to the rule or use E-Verify properly. All federal contracts awarded after September 8, 2009, will now include language requiring contractors to enroll in the E-Verify program within 30 days and verify the work eligibility of all employees working on the contract within 90 days, in addition to those hired for contract or non-contract work during the contract period. Higher education employers, however, are only required to verify employees who are working directly on the government contracts.

On August 25, 2009, the U.S. District Court for the District of Maryland rejected a legal challenge and upheld the rule, paving the way for DHS to finally implement the rule. The parties challenging the rule did file a notice of appeal and requested a stay pending the appeal. However, the rule took effect as scheduled after both the federal district court and the court of appeals declined to stay the rule.

Several organizations, including CUPA-HR, have asked Congress to make changes via legislation that would make the rule less burdensome on employers. After the Senate version of a DHS appropriations bill contained an E-Verify requirement, CUPA-HR and the American Council on Education (ACE), along with other employer groups, sent a letter to DHS appropriators assigned to reconcile the House and Senate versions of the bill asking that they consider changes to requirements on re-verification of current employees, subcontractor liability and preemption of state and local requirements.

U.S. Citizenship and Immigration Services (USCIS) has issued a press release, a Q&A document, a User Guide and a Supplemental Guide to help federal contractors implement the required changes.

On September 28, CUPA-HR is hosting a webinar designed to assist members with the E-Verify requirement.

CUPA-HR and ACE File Comments on Government Contractor Regulations

On September 2, 2009, CUPA-HR and the American Council on Education (ACE) filed joint comments on the Department of Labor (DOL)’s proposed regulations to implement President Obama’s January 30 Executive Order 13496. The executive order requires federal contractors to (1) post notices informing employees of their rights under federal labor laws, and (2) include related provisions in each government contract and subcontract. A copy of the comments is available here. CUPA-HR will continue to monitor DOL’s work on the proposed regulations.

Fall Congressional Agenda

Congress came back from its August recess on September 8 to a significant committee chairman shift and bracing for a full legislative schedule in the four remaining months of the year.

On September 9, Sen. Tom Harkin (D-IA) officially accepted the chairmanship of the Senate Health, Education, Labor and Pension (HELP) Committee. The committee was previously chaired by Sen. Ted Kennedy (D-MA), who passed away on August 25. Harkin was offered the chairmanship after Sen. Chris Dodd (D-CT), who had more seniority on the committee than Harkin and has been leading the healthcare reform negotiations in Kennedy’s absence, chose to remain the chairman of the Senate Banking Committee. Sen. Harkin had previously chaired the Senate Agriculture Committee, which will now be chaired by Sen. Blanche Lincoln (D-AR).

This fall, healthcare will continue to monopolize much of Congress’ attention; however, the agenda will also include various appropriations and reauthorization measures, as well as a climate change or energy bill Democrats campaigned on that was delayed throughout the summer due in part to the healthcare debate. In addition, several significant labor bills that have been waiting in the wings while healthcare took center stage are expected to begin to see committee action in the coming weeks.

We expect Congress will consider the Healthy Families Act (S. 1152), which would mandate that employers provide employees with seven days of paid time off for illness and other reasons. This summer, CUPA-HR sent a letter to a Senate working group on flexibility explaining the problems with such mandates. We also expect Congress may take up the Public Safety Employer-Employee Cooperation Act (S. 1611). The legislation would create a federally protected right to collective bargaining for police – including most campus police – firefighters and EMTs employed by states (including public colleges and universities) or municipalities with 25 or more full-time employees and populations over 5,000. This would be a change for many southern states, where public employers have no duty to recognize or bargain with unions.

Congress may also take up the Employment Nondiscrimination Act (ENDA) (H.R. 3017), which would prohibit employment discrimination based on sexual preference and gender identity. The bill’s proponents have worked closely with the employer community and others, including religious colleges and universities, to address potential concerns. As a result, we expect no business association will oppose the bill and several HR groups, including CUPA-HR, may support the legislation. The House Education and Labor Committee has scheduled a hearing on the bill for September 23.

Finally, with Sen. Harkin taking the helm of the Senate HELP Committee, we are likely to see a renewed emphasis on some version of the Employee Free Choice Act (EFCA) (S. 560), of which he is the lead Senate champion. Sen. Harkin has conceded that while he believes he has the votes to move the bill out of committee, EFCA may be stalled for the year as they do not have the 60 votes yet to pass the bill. The new HELP chairman vowed to make EFCA his top priority for next year, however.

Obama Attempts To Revive Healthcare Reform After Contentious August Town Halls

Members of Congress returned home for the August recess to very heated and crowded town hall meetings focused on the Democratic healthcare proposals. Constituents on both sides of the issue showed up in droves and made their concerns known. Without the White House and Democratic leadership’s direct control of messaging on the legislation, the president’s approval rating dropped as did the number of Americans supporting changes to the healthcare system.

In response, on September 9, just a day after Congress returned from recess, President Obama gave a speech to a joint session of Congress hoping to get the healthcare debate back on track and spur them to act quickly. He made a plea to for Congress members to put partisan bickering aside and to work together, outlining in very vague details what his healthcare reform would look like. However, the president has never released a plan of his own and it was unclear which of the House or Senate proposals he may have been advocating for.

Four of five congressional committees, two in the Senate and three in the House, had already voted out a version of healthcare legislation prior to the August recess. The remaining committee, the Senate Finance Committee, chaired by Sen. Max Baucus (D-MT), has been working closely with a group of six senators attempting to craft what would be the only bipartisan bill. The “gang of six” continues to work toward consensus, but Sen. Baucus now reportedly plans to introduce his proposal, with or without Republican support, sometime in the next week, with a markup likely to be scheduled for the week of September 21.

Senate Majority Leader Harry Reid (D-NV) and the administration have put extreme pressure on Baucus to wrap up negotiations so a bill can be moved to the Senate floor for a vote. An outline of the Baucus proposal that has been circulating does not include the controversial public healthcare option that the other Senate bill and the House bills contain, and instead proposes a co-op idea that would receive initial start-up funding from the federal government. Baucus is expected to make decisions in the next week, prior to the committee markup, on how his bill will deal with outstanding issues like Medicaid expansion, the use of federal funds for abortion and medical liability.

Once the Finance Committee reports out a bill from committee, it will need to be merged with the Senate Health, Education, Labor and Pension Committee bill before it proceeds to a floor vote. After the House and Senate pass their versions of the bill, they will go to a conference committee where a single bill will be negotiated by House and Senate members appointed to the temporary committee.

In the days ahead while Congress works to combine the various bills, even more fireworks are likely as different pockets of Congressional membership have come out in strict opposition to various provisions. House progressive Democrats say they will not vote in favor of health reform unless it has a “robust” public option, while many moderate, or “blue dog,” Democrats have said they will vote against the bill if a public plan is included. Other hot-button issues, like abortion funding and access for undocumented aliens, may also divide Congress. Rep. Bart Stupak (D-MI) has said he and many others will vote against a bill unless he is allowed to offer an amendment banning abortion funding.

Every stage and every provision of the healthcare reform debate in the coming months is likely to be extremely volatile. Reid hopes to push the Finance Committee so it can get a final Senate bill on the floor as early as September 28 and reportedly wants to get through conference committee and have a final vote prior to Thanksgiving. CUPA-HR will continue to closely monitor the healthcare reform debate.

Timeline Unclear for Immigration Reform

Sen. Charles Schumer (D-NY), chairman of the Judiciary Immigration Subcommittee, said he would have draft legislation ready for subcommittee consideration following the August recess; however, his timetable appears to have changed. Schumer reportedly has an outline of legislation ready but has decided to delay introducing the legislation at this time. In recent weeks, he has been working with Sen. Lindsay Graham (R-SC) on the legislation and hopes to use the next few weeks, while Congress is focused on healthcare reform, to begin talks with more senators to ensure his final product is a bipartisan bill that will receive broad support.

While the Senate is expected to act first, Schumer is also collaborating with Rep. Zoe Lofgren (D-CA), chair of the Judiciary Immigration Subcommittee in the House. Lofgren will lead the charge on immigration reform in the House and is beginning discussions with Democrats and Republicans in the House so they will have a bill ready later this year, when the Senate hopes to act.

The president continues to show support for beginning the immigration reform debate. On August 20, he hosted a stakeholders’ meeting with Homeland Security Secretary Janet Napolitano. Representatives from over 100 business, labor, faith and immigrant rights’ groups were in attendance, all raising concern, offering feedback and proposing solutions in discussion groups with administration officials. The White House did not offer any details on the president’s goals or the timing of when he would like to enact reforms. Some speculate that President Obama will engage more directly after the healthcare debate winds down and will sign a bill into law by next spring. However, it remains unclear how much of an appetite he or Congress will have for tackling yet another big contentious issue.