HRM-RI Legislative  Affairs Commitee
  
 Lynn Watterson, Chair
  
 lynnwatterson@msn.com
 

For more information on
current legislative issues...

Visit the RI State Council site at
www.shrmri.org

Visit the Governmental Affairs page on the SHRM web site at www.shrm.org/government/
 
Or visit the Legislative Affairs page of the Rhode Island State Council web site at www.shrmri.org/legislate2.html

10th Annual SHRM-RI Legislative & Employment Law
Update & Luncheon

May 1, 2008

SAVE THE DATE!
 

Legislative Issues

SHRM-Endorsed Employment Verification Bill is Introduced in the US House of Representatives

On February 28, 2008, the SHRM-led "HR Initiative for a Legal Workforce" coalition hosted a news conference at the U.S. Capitol with U.S. Representatives Sam Johnson (R-TX), Paul Ryan (R-WI) and Kevin Brady (R-TX) announcing introduction of H.R. 5515, the "New Employee Verification Act&qout; (NEVA). The bill would replace the federal government's current employer verification process with a new electronic verification system, the Electronic Employment Verification System (EEVS).

Under the bill, employers would use the state "new hire" reporting process, which is currently used for child support enforcement, to access EEVS. This would allow employers to confirm the work eligibility of U.S. citizens through the Social Security Administration database and that of non-citizens through the Department of Homeland Security (DHS) database.

In addition, the bill also would create a voluntary biometrics option that employers could choose to use in the verification process. This system would include a standard background check and the collection of a "biometric" characteristic — such as a thumbprint — to secure an employee's identity and prevent the illegal use a Social Security number, stolen or fraudulently-obtained drivers' license, or altered identification documents. To protect employers from liability, the legislation would provide employers a safe harbor.

Other key NEVA provisions of interest to HR professionals include:

• Allows the entire attestation requirements to be done electronically as well eliminates the current Form I-9.
    
• Applies only to employer's newly hired employees and would not require employers to re-verify all existing employees as is required by other bills.
    
• Allows employers to check the employee through the electronic system beginning on the date of hire and ending at the end of the third business day after the employee has reported to work.
    
• Provides that federal immigration law preempts any state law in regard to employer fines or sanctions for immigration-related issues or in requiring employers to verify work status or identity for work authorization purposes.
    
• Requires employers to be responsible only for the hiring decisions of their own employees, not those of their subcontractors.

Click HERE for more information on the bill from the House Ways and Means Committee's website. For an in-depth summary of the bill's provisions, click HERE (PDF).

If you have questions about the New Employee Verification Act, please contact Mike Aitken at maitken@shrm.org or Michael Layman at mlayman@shrm.org.

SHRM Alert: House Passes H.R. 1424 Which Limits Employers' Flexibility in Designing Health Benefit Plans and Increases Costs

Despite opposition from business and employer groups, on March 5, 2008, the U.S. House of Representatives passed the Paul Wellstone Mental Health and Addiction Equity Act of 2007 by a vote of 268 - 148. The bill would require employers to offer employees equal health care coverage for mental and physical illnesses.

This legislation will substantially limit employers' flexibility in designing health benefit plans and increase health coverage costs.

Background

In 1996, Congress enacted the Mental Health Parity Act to require annual or lifetime dollar limits for mental heath benefits to be equal to the limits for medical/surgical benefits offered by a group health plan. The law applies only to group health plans that offer both mental health and medical benefits.

In recent years, Congress has debated expanding coverage for mental health and substance abuse conditions beyond the 1996 Mental Health Parity Act. SHRM and HR professionals, ever wary of rising health care costs, have carefully considered the impact various mental health coverage bills will have on employers and employees. SHRM has endorsed bipartisan, consensus legislation (S. 558, the Mental Health Parity Act of 2007) that enjoys the support of employers, health plans, and the mental health community. Unfortunately, the House of Representatives is poised to consider mental health legislation (H.R. 1424) that is much broader in scope and could increase health care costs for employers and employees.

Legislation

H.R. 1424 is a bipartisan bill sponsored by Representatives Patrick Kennedy (D-RI) and Jim Ramstad (R-MN). Key provisions of H.R. 1424 that are of concern to HR professionals include the following:

• Benefit Mandate -- H.R. 1424 imposes a broad benefit mandate that preempts lesser state mandates. Employers would be required to cover all conditions in the Diagnostic and Statistical Manual of Mental Disorders (including caffeine addiction or sibling rivalry).
     
• Medical Management -- The bill lacks adequate protection for medical management of benefits by allowing state laws to undercut medical management. Employers rely on medical management of benefits to ensure the quality of care and the affordability of coverage.
     
• Preemption -- H.R. 1424 allows states to enact more extensive laws, including an alternative remedy structure. Employers would face an uneven patchwork of state requirements, increasing costs and the complexity of benefit administration.
     
• Network Coverage -- Employers rely on provider networks to encourage higher quality care and lower coverage costs. H.R. 1424 undercuts both of these objectives by mandating out-of-network coverage if any other benefit is offered on an out-of-network basis.

SHRM Alert: DOL Issues Notice of Proposed Rulemaking on FMLA

On February 13, 2008, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) on the Family and Medical Leave (FMLA) regulations. The text of the NPRM is available by clicking here.

The NPRM attempts to improve many, but not all, of the obstacles to effective implementation of the FMLA in the workplace. The notice also includes proposed regulations to fully implement the new FMLA military leave provisions recently approved by Congress. Comments are due on or before April 11, 2008.

To read a summary of the NPRM that focuses on issues identified by SHRM members as key to FMLA implementation, click here (PDF file).

State Legislative Alert: H. 7101 Would Mandate That All RI Employers Participate in Federal E-Verify System

H. 7107 would mandate that all Rhode Island employers to participate in the federal E-Verify electronic employment verification system, which is currently a voluntary program administered by the U.S. Department of Homeland Security. Specifically, this measure mandates that each non-governmental employer in the state apply to participate in the program for the purpose of verifying the work eligibility status of each of the employer's newly hired employees.

The legislation stipulates that an employer with 200 or more employees shall apply to participate in the program no later than January 1, 2009; employers with at least 50 employees, but fewer than 200 employees, shall apply to participate in the program no later than July 1, 2009; and an employer with fewer than 50 employees shall apply to participate in the program no later than July 1, 2010. Additionally, employers who fail to apply for the program by these deadlines will be subject to monetary penalties as high as $5,000, depending on the employer's size.

The current federal verification system, commonly known as E-Verify, is a voluntary system and was designed to verify employment electronically just as the proposed legislation intends.

Talking Points

Rhode Island SHRM urges you to oppose H. 7101.  Rhode Island SHRM agrees that the desire to proactively deter illegal immigration by ending unauthorized employment is both understandable and laudable, and we endorse the concept of a secure, reliable federal electronic employment verification system. However, E-Verify is far from foolproof and is not ready to meet the challenge of massively increasing its participant level as more and more states begin requiring participation. Employers should not be forced to participate in a voluntary program until the Federal government provides assurances that the system works. Other key concerns to HR professionals include:

• Federal Preemption – The federal government and not the states should be responsible for establishing the requirements for verifying employment eligibility under our nation's immigration laws. Although well-intentioned, a state mandate as proposed under H. 7107 is confusing and costly for Rhode Island employers and undermines the goals of an effective national system.
   
• Inadequate System Capacity – H. 7107 mandates all Rhode Island business entities to apply and eventually participate in E-Verify (formerly called 'Basic Pilot") to verify a new hire's eligibility for employment. As of June 2007, the Department of Homeland Security (DHS) and the Social Security Administration (SSA) have not resolved ways to reduce processing delays. The majority of E-Verify queries are confirmed within seconds, yet about eight percent can't be confirmed and these can take several days or, in some cases, weeks to resolve, putting employers in a difficult situation and subjecting thousands of legal workers to potential job loss and/or lengthy delays as they attempt to navigate the federal bureaucracy.
   
• Susceptibility to Identity Fraud - E-Verify does not even address identify fraud issues where individuals present borrowed or stolen genuine documents. This is a growing problem that puts employers, including small businesses, in the business of immigration enforcement.
   
• Additional Administrative Burdens – While H. 7107 mandates large Rhode Island businesses to begin using E-Verify to confirm the employment eligibility of new hires effective January 1, 2009 (with smaller businesses phased-in later), Rhode Island employers would still be required to continue to attest on the Federal form I-9 that he or she had examined the new hire's employment and identification documents to ensure authenticity, resulting in double-work for Rhode Island employers.
   
• Employer Accessibility – The E-Verify program is accessible only through the Internet which many small employers in Rhode Island may not have access to.
   
• Conflicting Statutes - The legislative language of H. 7107 is ambiguous about termination procedures that relate to a 'non-confirmed" status being returned by the U.S. Department of Homeland Security
   

Mandating employers to participate in the E-Verify program without it being fully functional will cause a huge burden for Rhode Island employers attempting to verify their new hires. Employers want an accurate, fair and timely federal electronic employment eligibility verification system. However, they should not be forced (under threat of monetary penalties) to participate in a program that has been shown to be less than 100 percent efficient in supplying accurate and timely information to employers.

Action Needed

Call Your State Representative – Follow this link: http://www.sec.state.ri.us/vic/, which will direct you to your state's legislative website. Once on the site, insert your zip code and you will be provided with your legislator-specific information.

Write Your State Representative – SHRM members may use HRVoice by following these steps:

• Log onto SHRM Online by clicking here.
• Sign in using your SHRM member number and last name.
• Click on "Governmental Affairs," then go to "HRVoice" on the left side of your screen.
• Choose "Write your elected officials."
• Click on "Oppose H.R. 7107, Mandating Participation in the Federal E-Verify Employment Verification Program for All Rhode Island Employers" under the heading "Take Immediate Action on these Hot Issues."

SHRM Alert: National Defense Authorization Act Expands FMLA

On Monday, January 28, 2008, the President signed into law the first expansion of the Family and Medical Leave Act (FMLA). The National Defense Authorization Act (H.R. 4986) provides additional FMLA leave for military families. Specifically, Section 585 of the bill adds two new FMLA-qualifying events, expanding FMLA to include employees caring for an injured service member as well as family members who have a family member called to active duty.

Under the new law, FMLA-eligible employees will now be entitled to the following:

Family Leave Due to a Call to Active Duty -- This benefit provides 12 weeks of FMLA leave due to a spouse, son, daughter or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces.  Leave may be used for any “qualifying exigency” arising out of the servicemember’s current tour of active duty or because the servicemember is notified of an impending call to duty in support of a contingency operation. 

Caregiver Leave for an Injured Servicemember -- his benefit provides 26 weeks of FMLA leave during a single 12-month period for a spouse, son, daughter, parent, or nearest blood relative caring for a recovering service member.  A recovering service member is defined as a member of the Armed Forces who suffered an injury or illness while on active-duty that may render the person unable to perform the duties of the member’s office, grade, rank or rating.

Most of the provisions of the FMLA remain unchanged and will apply to these new types of FMLA leave, including employer coverage, employee eligibility requirements, health insurance continuation, and reinstatement rights.  Employees can utilize the leave on an incremental basis or in the smallest increment that the employer’s payroll system tracks under both of these new leave requirements,

While the Department of Labor (DOL) will need to issue regulations to fully implement this new law, they have released guidance that indicates the caregiver provision of the law is effective as of January 28, 2008, but the call to active duty provision will not be effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” In the interim, the DOL encourages employers to provide this type of leave to qualifying employees.

Upcoming Webcast! What New FMLA Rules Mean for Military Families and Their Employers  - February 5, 2 p.m. ET - The federal Family and Medical Leave Act is being expanded for the first time since its enactment 15 years ago.
 
Employers will have to offer up to 26 weeks of unpaid leave to workers who provide care to wounded U.S. military personnel and 12 weeks of FMLA leave to the immediate family members of soldiers, reservists and members of the National Guard who have a "qualifying exigency." In this webcast, attorney Frank Alvarez provides insight into what the new rules mean and steps employers should be taking now to comply with them

SHRM Alert: Changes to Americans with Disabilties Act

The U.S. House of Representatives is planning to consider legislation called the "ADA Restoration Act," a bill that would expand the definition of "disability" under the Americans with Disabilities Act in order to cover -- and require employers to accommodate -- people who have minor or temporary impairments such as near-sightedness, headaches, small scars and even "tennis elbow" or tattoos. There is significant concern that this legislation would reduce the effectiveness and availability of workplace accommodations for employees with the most severe disabilities.

The House Education and Labor Committee will hold a hearing on this pending legislation on Tuesday, January 29, 2008. Please let your legislators know that the ADA Restoration Act would be a complete rewrite of the ADA, and it is not a simple, noncontroversial tweaking of the nation's most important disability nondiscrimination law. Urge your representatives to
NOT CO-SPONSOR and to OPPOSE H.R. 3195, the ADA Restoration Act as it is currently drafted.

SHRM's Position

SHRM opposes the ADA Restoration Act because it would fundamentally change the definition of disability under the ADA.  Expanding the definition of disability would greatly increase the number of covered individuals competing for the same employer funds and dilute an employer's ability to provide resources to individuals with the most severe disabilities.

Action Needed

Write or call your elected officials in Washington today!  Your U.S. Representatives needs to know your views on this important matter before the private rights of employees are changed.

Click here to download a sample letter with addresses (Word)

Click here to download a sample letter with addresses (PDF)

If you are a SHRM member, you can write your elected official using HRVoice by following these steps:

1)      Log onto SHRM Online by clicking here.
2)      Sign in using your SHRM member number and last name.
3)      Click on "Governmental Affairs," then go to "HRVoice" on the left side of your screen.
4)      Choose "Write your elected officials."  
5)      Click on "Urge Your Representative to OPPOSE the rewrite of the Americans with
         Disabilities Act" under the heading "Take Immediate Action on these Hot Issues."

'HR Initiative' Coalition Urges Congress to Keep Basic Pilot Voluntary for Federal Contractors

According to an article recently published on the SHRM website, The HR Initiative for a Legal Workforce coalition is continuing to advise Congress that the 'Basic Pilot' system of electronic employment verification is unreliable and susceptible to identity fraud by individuals using authentic (but stolen) documents. The coalition is urging Congress to keep participation in 'Basic Pilot' voluntary until the system can be improved to ensure that only work-authorized individuals can gain employment in the US. Click here to read this article on SHRM site.

CNN Poll Ranks HR-Related Issues At Top of Voters' Concerns

HR-related issues are likely to influence voters in November 2008, according to an extensive poll about the upcoming 2008 presidential election which was recently released by CNN. The top five issues for voters were: Iraq, the U.S. economy, health care, immigration, and security/terrorism. Click here for the complete CNN poll results.

RESPECT Act Would Redefine "Supervisor"  --  Opposed by SHRM

The House Education and Labor Committee recently approved H.R. 1644, the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act on a party-line vote of 26-20.  The RESPECT Act was introduced by Representative Robert Andrews (D-NJ), and it would amend Section 2(11) of the National Labor Relations Act (NLRA) to redefine "supervisor" in a way that would significantly affect an employer’s ability to manage its workforce.  The legislation would dictate that an employee cannot be classified as a "supervisor" unless the employee engages in managerial duties "for a majority of the individual's worktime."

The Committee has made the RESPECT Act a priority because an employee who is categorized as a "supervisor" is not covered under the NLRA and is consequently unable to join a union. The RESPECT Act was inspired by the U.S. Supreme Court’s 2001 decision in National Labor Relations Board  v. Kentucky River Community Care, Inc., in which the Board's test for determining how employees were classified as supervisors was deemed "inconsistent" with the NLRA.

SHRM has opposed the RESPECT Act because it would substantially narrow the NLRA's definition of supervisor and, thus, reduce the number of employees that management can classify as supervisors.  For these reasons, the bill could potentially cause employees with supervisory duties to have conflicting responsibilities between their organization's manage-ment and their labor union.  As SHRM member and employment law attorney G. Roger King testified at an Education and Labor Committee hearing on the issue in May, employing organizations need the "loyalty of a sufficient number of 'supervisors' in their respective work-forces if they are to deliver products, goods and services in an effective, productive and safe manner."

The bill will likely be voted on by the whole House in the coming weeks.