• An 844-Page Immigration Bill, Sexual Orientation and Paid Time Off: Capitol Hill Blooms with Employment Legislation
  • June 12, 2013 | Authors: James "Jim" M. McCabe; Mark J. Newman; D. Eugene "Gene" Webb
  • Law Firms: Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Richmond Office
  • The immigration reform debates, going on for years now, have finally produced some substantial legislation, which was recently proposed in the Senate. As explained below, this 844-pager proposes many changes to immigration law, which some employers will love and hate. Also of note, once again a Bill has been introduced in Congress that would provide federal employment protections to employees based on their perceived or actual sexual orientation. Will it pass this time? Probably not without a very broad religious exemption, and even then, probably not in a Republican-controlled House. Finally, both Republicans and Democrats have proposed new laws relating to employee paid time off. Employers will prefer the Republican’s version, but neither of these Bills has much chance of success as Congress remains a house divided.

    BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT (S. 744)

    CURRENT STATUS OF LAW: Federal immigration laws affecting employers are governed by a patchwork of federal laws and related regulations as well as state laws. Under federal law, some employers participate in a worker verification program known as "E-Verify," which is an Internet-based system that compares information from an employee's Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. While some employers may be required by state law or federal regulation to use E-Verify (e.g., certain federal contractors), most employers are not currently required to participate in E-Verify.

    WHAT WOULD CHANGE: The Border Security, Economic Opportunity, and Immigration Modernization Act contains 844 pages of provisions that would, if enacted, result in major changes to federal immigration law in areas such as E-Verify, border security, the legalization of undocumented workers, asylum, stateless persons, procedures relating to deportation, family-based immigration, non-immigrant visas, employment visas, and naturalization requirements, among other things. Not all of these changes will affect employers directly, but some will.

    Most notably, all employers within five years (and sooner for some employers) would be required to comply with the proposed new mandatory employment verification system (E-Verify). This system would require that employers verify the legal status of their non-citizen employees through the use of a biometric card, containing the individual’s photograph. In addition, employers would be subject to related recordkeeping requirements.

    Employers who do not comply with the Act will be subject to fines (a minimum of $3,500 and maximum of $7,500 for each violation). Repeat offenders are subject to greater penalties. Employees would also be entitled to seek relief for "unlawful acts of the employer" in violation of the Act or for "retaliation" for exercising their rights under the Act. Whistleblowers would also be protected from discrimination or retaliation.

    While the changes to E-Verify would impose additional burdens on many employers, some employers will welcome other provisions in the Act, including:

    1. The legalization of undocumented persons in the U.S. prior to December 31, 2011 through granting Registered Provision Immigrant ("RPI") status which would permit qualifying individuals six years of RPI status with available extensions every six years and the possibility of applying for green card status after ten years.
    2. There would be exemptions from annual quotas for various categories of workers (e.g., derivative children and spouse, certain professionals, certain foreign doctors) and could reallocate annual quotas for other employment-based visas.
    3. Employment-based visas for skilled workers would rise to 40% of total visas. Further, an individual who has earned a Master’s or higher in science, technology, engineering or mathematics (STEM) from an accredited United States institution within five years of applying for a green card and who has a job offer from a United States employer will be able to get a green card.
    4. A new three-year visa called INVEST will be available to foreign entrepreneurs who meet certain revenue, investment and job-creating benchmarks.
    5. Employees can receive work authorization while a timely-filed petition or application is pending.
    6. Increase in H1 visas to 115,000 annually and a further increase to 180,000 depending on unemployment rate.

    WHY YOU CARE: For employers not currently participating in E-Verify, this law would increase your compliance burdens and subject you to new potential legal actions and penalties. Conversely, certain employers will welcome the increased opportunity to hire and retain highly skilled foreign employees and reduce employer risk of hiring workers with false documentation.

    LIKELIHOOD OF BECOMING LAW: Immigration reform has been one of the hottest recent topics in Congress, with many draft bills and amendments being circulated. This mammoth Bill is the most substantial proposal so far and was passed by the Senate Judiciary Committee on May 21, but has already received much criticism from both political parties as being too favorable to one or another group of workers and stands little chance of passing the Republican controlled House, even if it does make it out of the Senate. It has also been heavily criticized for its legalization of undocumented workers and perceived emphasis on amnesty over border security. While there still seems to be no end in sight for major reform, this 844-page bi-partisan Bill may begin to point the way forward.

    A BILL TO PROHIBIT EMPLOYMENT DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION OR GENDER IDENTITY (S. 815; H.R. 1755)

    CURRENT STATUS OF LAW: While about 16 states have enacted laws protecting individuals from discrimination based on sexual orientation, federal law does not provide similar protections.

    WHAT WOULD CHANGE: This Bill was introduced on April 25, 2013 and is a re-introduction of a similar bill, the Employment Non-Discrimination Act, introduced in 2011. However, while this Bill has been referred to committee for possible introduction to the full Senate or House, the actual text of the Bill has not yet been released. The Bill sponsors report that the Bill would prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.

    WHY YOU CARE: Most employers already have policies prohibiting discrimination on the basis of sexual orientation. Employers with religious convictions that conflict with this legislation, such as certain churches and religious organizations, will want to review the religious exemption because prior similar bills have been challenged on these grounds.

    LIKELIHOOD OF BECOMING LAW: With the Administration’s refusal to defend the Defense of Marriage Act, which began in 2011, and President Obama’s announcement last year of his change of views on same-sex marriage, the Administration appears to have made the protection of sexual orientation a priority on a federal level. While this Bill’s supporters indicate increased support in comparison to prior introductions, we think it will ultimately fail to progress in the House.

    WORKING FAMILIES FLEXIBILITY ACT OF 2013 (H.R. 1406)

    CURRENT STATUS OF LAW: The Fair Labor Standards Act requires nearly all employers to pay non-exempt employees at an overtime rate of 1.5 times their regular rate for any hours worked over 40 in a workweek. Public sector employees have been permitted, since 1985, to receive paid time off in lieu of overtime compensation, but private sector employees have not.

    WHAT WOULD CHANGE: On April 9, 2013, House Republicans introduced the Working Families Flexibility Act of 2013. This Act proposes an alternative to the current overtime rate. In particular, it would permit private sector employers and employees to agree to receive paid time off in lieu of overtime wages.

    WHY YOU CARE: Private-sector employers would welcome this alternative to overtime pay.

    LIKELIHOOD OF BECOMING LAW: Even though "comp time" has been a valid alternative for public sector employees for decades, many Democrats have criticized this Act, which will likely see little progress in the Senate, even though it has been warmly received in the House where 168 members have sponsored it so far.

    HEALTHY FAMILIES ACT (S. 631; H.R. 1286)

    CURRENT STATUS OF LAW: While several states and cities have enacted laws requiring private employers to provide employees with paid sick leave (most recently Portland, Oregon), federal legislation that would require paid-sick leave has never reached the President’s desk, even though such legislation has been introduced many times.

    WHAT WOULD CHANGE: The Healthy Families Act, introduced on March 20, 2013 by House and Senate Democrats, would require employers with 15 or more employees to provide paid time off for an absence resulting from:

    1. a physical or mental illness, injury, or medical condition of the employee;
    2. obtaining professional medical diagnosis or care, or preventive medical care, for the employee;
    3. the need to care for certain family members who have either of the above two items;
    4. certain activities related to domestic violence, sexual assault, or stalking.

    WHY YOU CARE: Most large employers provide some form of paid sick leave. However, this Bill would place burdens on small employers as well as larger employers whose workforces or compensation arrangements do not provide paid sick leave.

    LIKELIHOOD OF BECOMING LAW: Not likely. The House Republicans are unlikely to show the necessary support for this Bill and will likely view it as an unnecessary expansion of the federal government’s reach into the personnel policies of private employers and an unjustified cost to small business.