In the waning hours late last week before Congress took its summer vacation, Congress was busy debating (or in some cases, not debating) some key employment bills.  These all still require approval from the one side of Congress or the other, but these bills are getting closer to becoming law.  (For a refresher on how a bill becomes a law, you can always click here.)

Paycheck Fairness Act

Long-time Representative Rosa DeLauro, from the Third Congressional District in Connecticut, must be a happy camper this week after the Paycheck Fairness Act she sponsored passed the House of Representatives on July 31st by a 247-148 vote.  The bill would limit the defenses employers have to an Equal Pay Act claim and amend the FLSA to add claims for compensatory damages and punitive damages.  (H/T Workplace Prof)

The bill now goes on to the Senate for a voice where its prospects are far from clear. Groups like the Heritage Foundation claim the act would "give[] a windfall to trial lawyers, exposing employers to unlimited punitive damages for unintentional mistakes."  On the other hand, others, like the National Women’s Law Center, claim the bill would merely close the "gender gap" that still exists.  It should be noted that this bill differs from the "Fair Pay Act".

ADA Amendments Act (f/k/a ADA Restoration Act)

After passing the House earlier this year, the ADA Amendments Act of 2008 has stalled at the Senate.  However, late last week, Senator Tom Harkin and Senator Orrin Hatch introduced a new bill (S. 3406) that makes two significant changes to the House bill.  You can download the text of the bill here.   With 64 co-sponsors, these changes are getting close enough to win over support of the business community (and ward off a veto threat).  If passed, this new bill would need to be reconciled with the bill passed by the House earlier this year.   

What are the two changes?

  • First, the bill eliminates a definition for "substantially limits", which was in the House bill.  The new bill would advise courts to simply consider impairments that are of central importance of people’s day-to-day activities.
  • The other change will only affect the education-related portion of the bill.  That change now says that reasonable modifications to educational policies are not mandated if the modifications would fundamentally change the program. 

E-Verify Extension

Florida Employment Law Blog reports that the House of Representatives has approved a bill that would extend E-Verify, the federal government’s electronic employment verification system, by five years.  The bill, HR 6633 or the Employee Verification Act of 2008, passed by a 407-2.

The bill now moves to the Senate for a vote; however, the Senate is in recess for the next five weeks.

Since my original post on the subject of Executive Order 12989 yesterday (and the sweeping effects it will have for all federal contractors), others have also added their comments to the subject. Among some of the notable posts:

The brand-new Florida Employment Law Blog (run by my former colleague Richard Tuschman — congrats, Richard!) predicts negative implications for employers — particularly those in Florida:

I find the government’s statement [that this will bring stability] suspicious because the government, although it has failed time and time again, has tried on repeated occasions to push legislation or regulations that would impose a mandatory electronic employment verification program on all US employers. Further, the Order is presented as being designed to promote "economy and efficiency" along with "stability and dependability," but the reality is that there is nothing economic, efficient, stable or dependable about skilled and unskilled jobs that cannot be filled because there are no enough American workers readily available to work.

The government in its zeal security and enforcement is failing to consider the true economic impact these measures will have on employers and consumers. Enforcing this type of order in the absence of immigration reform which could provide employers with helpful avenues could doom – against contrary government opinion – many efficient employers. I am not sure how the government is going to enforce this Order, but for us in Florida enforcing these measures could have a long lasting negative effect.

The Workplace Prof blog predicts that this Executive Order will be short-lived by noting that the Government Accountability Office (GAO) yesterday released the following reports, testimony, and correspondence on employment verification issues surrounding the immigration debate: Employment Verification: Challenges Exist in Implementing a Mandatory Electronic Employment Verification System. GAO-08-895T, June 10.

Suffice to say that this is far from a settled issue. Government contractors should continue to monitor this subject throughout the summer for further development.


Most people think that changes to the laws or the way companies conduct business can only happen through the legislative changes.  But an Executive Order effective this week reminds us of the power of Executive Branch.   

Effective immediately, all federal contractors must now agree to use E-Verify, an Internet-based system operated by U.S. government, to electronically verify the employment eligibility of new employees.  This appears to apply to all contracts on a going-forward basis, not a look-back provision.  The White House’s press release is available here along with the text changes. 

The press release issued by the Department of Homeland Security has the particulars on Executive Order 12989:

The Department of Homeland Security today designated E-Verify, operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all federal contractors must use as required by Executive Order 12989, as amended. E-Verify is a free Internet-based system that allows enrolled employers to confirm the legal status of new hires within seconds.

"A large part of our success in enforcing the nation’s immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal," said Homeland Security Secretary Michael Chertoff. "E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires."

President George W. Bush has amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system – designated by the Secretary of Homeland Security – to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract

According to the Delaware Employment Law Blog, "This requirement apparently extends to all newly hired employees, not just employees hired to work on the government contract. In addition, the Executive Order requires the contractor to use an electronic verification system to verify the employment eligibility of “all persons assigned by the contractor to perform work in the United States.”"

Further details on the changes can be found at the Pennsylvania Labor & Employment Law Blog.

And major newspapers have also chimed in, including an editorial in today’s Los Angeles Times which notes the creeping re-definition of what’s "reasonable":

On Monday, the Department of Homeland Security announced that it will require federal contractors to ensure the immigration status of employees through its E-Verify system. It’s a reasonable step — and that may be the problem. As immigration hawks have gone from triumph to triumph, the rest of us have had to adjust our views of what reasonable behavior is. 

For employment, it’s just one more detail that must be followed in an increasingly complicated mess of regulations, laws and now executive orders.