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Final House committee passes genetic nondiscrimination bill. The House Energy and Commerce Committee became the third and final committee to approve a bill designed to protect personal genetic information from misuse by employers and insurance companies. The committee's action moves the legislation nearer to consideration by the full House. The Energy and Commerce Committee, which approved the bill on March 23, 2007, is one of three committees that share jurisdiction over the bill. The Ways and Means Committee approved the measure on March 21, 2007, and the Education and Labor Committee passed the bill on February 14, 2007. The bill – the Genetic Information Nondiscrimination Act (H.R. 493) – would make it illegal for insurers and employers to use genetic information to discriminate against people with potential health problems. It would bar employers, employment agencies and labor organizations from using genetic information when making hiring, firing, job-placement or promotion decisions. It would forbid health insurers from denying coverage to healthy people, charging higher premiums based on genetic information or requiring genetic testing. A similar bill, S. 358, was approved by the Senate Health, Education, Labor and Pensions Committee on January 31, 2007. The measure has widespread, bipartisan support in the new 110th Congress and from President Bush. The Senate in the 108th and 109th Congresses approved a similar bill, but it failed to become law. House unveils bipartisan comprehensive immigration reform legislation. On March 22, 2007, Congressmen Luis V. Gutierrez (D-IL) and Jeff Flake (R-AZ) unveiled new legislation designed to overhaul the United States’ current immigration system. Called the Security Through Regularized Immigration and a Vibrant Economy Act of 2007 Act (STRIVE Act), the bill addresses border security, a temporary guestworker program and creates a pathway to legalizing illegal immigrants. Similar legislation failed last year as conservative House Republicans refused to endorse legislation that would enable some 11 million illegal aliens to become US citizens. The new legislation is likely to face comparable opposition. Gutierrez and Flake’s bill (H.R. 1645) is the first major immigration legislation to be introduced in the current session of Congress. “The bill we are discussing today is all about security–homeland security, family security and economic security,” Gutierrez said. “It will allow us to better protect our borders and reform an immigration system that is hampering businesses, hurting families and harming communities.” “Our current immigration laws are at odds with reality,” said Flake. "This bill addresses that problem by bolstering border security, increased interior enforcement, and creating a temporary worker program that's enforceable and fair.” The STRIVE Act’s border security provisions will increase the number border and other enforcement personnel, including port of entry inspectors, immigration and customs enforcement investigators and border patrol. In addition, penalties will increase for crimes committed by immigrants, including human smuggling, gang activity and visa/document fraud. The bill also requires a thorough evaluation of information sharing, international and federal/state/local coordination, technology, anti-smuggling and other border security initiatives. The STRIVE Act also calls for the development of multilateral partnerships to establish a North American security perimeter and improve border security on the Mexican southern border. The STRIVE Act would also establishes a guestworker program allowing up to 400,000 foreign workers to enter the US to work in low-skilled jobs that employers were unable to fill with US workers. Among the various requirements, participants would have to demonstrate their job qualifications and provide evidence of a job offer from a US employer, undergo criminal- and terrorism-related background checks and pay a $500 application fee. The work visa would be valid for three years and renewable for another three years. Employers are required to provide applicants with the same wages and working conditions enjoyed by US workers. Participants would also have the ability to change jobs and eventually get on a path to citizenship, if they so choose. The bill would also create a visa program for qualified undocumented workers. Undocumented workers who hold jobs in the US and who were in the country on or before June 1, 2006, can apply for conditional nonimmigrant status. To attain such status, undocumented workers must complete criminal and security background checks pay a $500 fine plus necessary application fees and attest to employment in the US before June 1, 2006 and employment since that date. Those individuals convicted felonies or three or more misdemeanors would not be eligible to gain nonimmigrant status. After obtaining nonimmigrant status, undocumented workers can apply with their families for lawful permanent resident status (i.e., green card) and eventual citizenship. Applicants would go to the back of the line for permanent visas. To meet the requirements for earned citizenship, applicants must have been employed in the US for six years prior to applying for citizenship. In addition, they must pay a $1,500 fine plus application fees, complete criminal and security background checks, meet English and civic requirements, undergo a medical exam and pay all taxes. Additionally, applicants for US citizenship would be required to leave the country sometime during the six years prior to applying for citizenship and then reenter the country legally. The STRIVE Act would also set up new a employment verification system that employers must use verify each new hire’s authorization to work. The new system will eventually apply to all workers and all new hires and will be rolled out in phases, beginning with critical infrastructure employers and large employers. Significant civil and criminal penalties for employers who do not comply with the requirements under the new system will be assessed. Employers who repeatedly violate the new system will be debarred from government contracts, grants and agreements. Employers are forbidden from using the system to discriminate against applicants and employees on the basis of nationality and prohibited from terminating one’s employment due to a tentative non-confirmation when using the system to screen employees prior to offering employment, or using the system selectively. Before implementation of the new guestworker program and the program to legalize illegal aliens, improvements to border surveillance technology and the roll-out of the first phase of the employment verification system would have to be met. The bill also includes the DREAM Act and AgJobs bill, as introduced in the 110th Congress. The Development, Relief, and Education for Minors (DREAM) Act is an effort to assist undocumented young adults who have finished or are about to finish high school and cannot get into college because of their undocumented status. Called the Agriculture Job Opportunity, Benefit, and Security Act of 2007 (Agjobs), the AgJobs bill addresses the growing agriculture worker shortage by allowing undocumented workers to continue working in the US agricultural sector while obtaining permanent resident status. The STRIVE Act would also increase resources for the immigration court system, provides relief for immigrant victims of the 9-11 attacks and their families and it facilitate naturalization for members of the armed forces. Information sharing amendment not part of 9/11 Commission bill's final passage. Senator Wayne Allard's (R-Colo) amendment (S. 699) to allow information sharing between the Social Security Administration and the Department of Homeland Security related to the fraudulent use of names and social security numbers in connection with employment was not part of the final version of S. 4, the Improving America's Security Act of 2007, also referred to as the 9/11 Commission bill. The Improving America's Security Act of 2007, which the Senate passed on March 13, 2007, is a bipartisan bill providing risk-based homeland security grants to states, create a dedicated interoperable communications grants program for first responders, restrict terrorists' ability to enter the United States and improve information sharing among federal, state and local officials. The bill also includes provisions to strengthen privacy and civil liberties. Voting against passage of the bill, Allard made the following comments: "I'm also very disappointed that my common sense Social Security amendment to help curb identity theft was denied a vote on the floor. I was told by Democratic leadership that my amendment was not directly tied to a 9/11 Commission recommendation, even though it would have helped improve national security, which is ironic because the Democratic leadership included this collective bargaining provision, despite the fact that it was not a 9/11 Commission recommendation." OPM publishes final veterans' preference rule. The US Office of Personnel Management (OPM) has adopted as a final rule an interim rule that implemented changes to veterans' preference as contained in the National Defense Authorization Act for FY 2006. The final rule has amended the OPM's regulations at 5 CFR Part 211 to expand the definition of a veteran and clarified veterans' preference eligibility for individuals discharged or released from active duty under honorable conditions. The intended effect of these changes is to provide conformity between veterans' preference laws and OPM regulations so that job seeking veterans receive the preference to which they are entitled. The final rule was published in the Federal Register on March 15, 2007 (72 FR 12031-12032) and became effective as of that date. The interim rule was published in the Federal Register on June 9, 2006 (71 FR 33375-33376) and became effective as of that date. The final rule adopted the interim rule without changes. Bill would repeal "Don't Ask, Don't Tell" policy. Newly introduced House legislation would repeal the US military's "Don't Ask, Don't Tell" policy, which currently bans openly gay, lesbian and bisexual individuals from serving in the armed forces of the United States. The Military Readiness Enhancement Act (H.R. 1246) was introduced on February 28 by Rep. Marty Meehan (D-Mass), chairman of the House Armed Services Subcommittee on Oversight and Investigations. It has the support of 110 cosponsors. The bill's supporters state that it would help the military recruit and retain personnel. "It's time to repeal 'Don't Ask, Don't Tell,' both for principal and for practicality," remarked Rep. Chris Shays (R-Conn), one of three Republican cosponsors. "It unfairly discriminates and it strains our already stressed armed forces." Shays introduced similar legislation in the previous Republican-controlled Congress, but it failed to advance. According to the Servicemembers Legal Defense Network (SLDN), an advocate of the legislation, the military dismissed 742 service members in 2005 under the "Don't Ask, Don't Tell" policy, and since the law's implementation in 1993, more than 11,000 service members have been dismissed. The bill would allow those who have been discharged to apply to rejoin the military. "Discharging linguists, doctors, nurses, mechanics, infantrymen, and intelligence analysts for no other reason than because they are gay hurts readiness and negatively impacts unit cohesion. Allowing gay Americans to serve will make our military stronger," said the SLDN in a February 28 statement. The SLDN estimates that more than 65,000 gay Americans serve in the military. The bill will not change current written regulations about the personal conduct of service members as long as the regulations are neutral on the issue of sexual orientation. EEOC announces E-RACE initiative. The US Equal Employment Opportunity Commission (EEOC) launched the Eradicating Racism and Colorism from Employment (E-RACE) initiative, an outreach, education and enforcement campaign designed to advance the statutory right to be free from racism and colorism --discrimination that occurs not just between races, but also within a race --in today's workplace. The initiative will heighten awareness of new patterns of discrimination, explained the EEOC. "With a growing number of interracial marriages and families and increased immigration, racial demographics of the workforce have changed and the issue of race discrimination in America is multi-dimensional," stated the Commission. Historically, race-based charges have been the most frequent type of filing with EEOC offices nationwide. In Fiscal Year (FY) 2006, the agency received 27,238 charges alleging race-based discrimination, accounting for 36 percent of its private sector caseload. The EEOC reported that the number of charges alleging color-based discrimination --based on a shade of skin within a racial category --rose from 374 in FY 1992 to 1,241 in FY 2006. In addition, the Commission noted that recent studies show that some employers make selection decisions based on names, arrest and conviction records, employment and personality tests and credit scores --all of which may disparately impact people of color. Participants at the February 28, 2007 meeting about the initiative presented a broad range of perspectives on race and color bias, including the impact of recent demographic shifts, advances in technology and changes in corporate America. In addition to EEOC regional attorneys and plaintiffs from recent cases, the Commission heard from private attorneys, business consultants and members of academia. The EEOC will use administrative and legal procedures in its fight against race and color discrimination, though there are no new funds planned for the initiative and no immediate plans to increase the number of investigations and prosecutions. The EEOC will issue a list of objectives in the next 30 days that will advance the E-RACE initiative, said EEOC Commissioner Stuart J. Ishimaru. Additional information on the E-RACE initiative is available on the EEOC's website at: http://www.eeoc.gov/initiatives/e-race/index.html.
RESPECT Act would amend the definition of "supervisor" under the NLRA. Senator Chris Dodd (D-CT), along with Senators Richard Durbin (D-IL) and Edward Kennedy (D-MA) introduced on March 22, 2007, the Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act, which would amend the National Labor Relations Act (NLRA) to modify the definition of supervisor in order to ensure that no employee is unjustly denied his or her right to join a labor union. Congressman Rob Andrews (D-NJ-1) introduced companion legislation in the House of Representatives. Congresswoman Rosa DeLauro (D-CT-3) is a cosponsor of the legislation in the House. Senator Dodd's bill would correct a policy created by a series of decisions by the National Labor Relations Board (NLRB) last October, in which the NLRB ruled that many charge nurses are supervisors, even though they may have no authority to hire, fire, or discipline other employees. Under these rulings, only 10 percent of a worker's time in a supervisory capacity is enough to lock him or her out of a union. According to the sponsors, the NLRB's decision has opened the door for widespread abuse of workers in countless industries. Source: Office of Senator Christopher Dodd OFCCP announces second FY 2007 scheduling list for audits. The Office of Federal Contract Compliance Programs (OFCCP) has announced that, beginning April 2, 2007, its regional offices may schedule compliance evaluations of non-construction federal contractors from a second fiscal year (FY) 2007 scheduling list. The agency released an initial FY 2007 scheduling list in November 2006 that was comprised of approximately 2000 facilities. This second FY 2007 scheduling list is comprised of approximately 4500 facilities that have either self-identified as being an establishment of a federal contractor, or have been identified as such by the OFCCP. The OFCCP generated these lists through its "Federal Contractor Selection System." This system uses multiple information sources and analytical procedures to select contractors for review, including a mathematical model that ranks federal contractor establishments based on an indicator of potential workplace discrimination. As part of the selection process, the OFCCP attempted to better identify whether a potential contractor actually holds a current federal contract by matching its list of contractors who have submitted the EEO-1 Report to external federal contract databases. These lists also includes a number of establishments identified through external federal contract databases as part of OFCCP's "Contracts First Initiative." Kennedy unveils paid sick leave legislation. Senator Edward M. Kennedy (DMass), on March 15, 2007, reintroduced legislation requiring employers with 15 or more employees to provide a minimum of seven paid sick days a year. Called the Healthy Families Act (S. 910), the legislation would allow the paid sick days to be used to care for an employee's own illness or physical/mental condition, to obtain a medical diagnosis, a related treatment, or preventive care, or to care for a family member for any of the above reasons. The legislation has been referred to the Senate Committee on Health, Education, Labor & Pensions. Currently, almost half of private-sector workers are denied paid sick days, and of the lowest quarter of wage earners, 79% have no paid sick days at all. According to Kennedy, the Act would give 46 million workers access to paid sick days; another 19 million would gain paid sick days for doctor's visits and family care; and 1 million employees would gain additional paid sick days. A companion measure (H.R. 1542) will be co-sponsored in the House by Representative Rosa DeLauro (D-Conn). Kennedy noted that paid sick leave produces savings for businesses through decreased turnover and increased productivity and would help stop the spread of infections. "Paid sick leave is a basic right of people in the workplace and the price paid for denying employees paid sick leave is felt by all of us," he said. Senate vote reconfirms union rights for airport screeners. The Senate reaffirmed its intention to give airport screeners the right to bargain collectively. The Senate action sets up a potential showdown with the Bush administration, which has vowed to veto the legislation because of the administration's opposition to bargaining rights for screeners. The Senate adopted an amendment clarifying that transportation security officers (TSOs) have the right to collectively bargain, but--like many unionized federal employees--cannot negotiate pay issues. In addition to bargaining rights, the amendment, offered by Sen. Claire McCaskill, D-Mo., would provide screeners with whistleblower protections and the ability to appeal adverse personnel decisions. The Senate approved the McCaskill amendment by a 51-48 vote on March 7. The previous day, the Senate rejected a Republican-backed amendment that would have stripped the national security bill of provisions to grant screeners collective bargaining rights. Following its approval of the McCaskill amendment, the Senate rejected an amendment sponsored by Sen. Susan Collins, R-Maine, that would have denied airport screeners the right to bargain collectively with the TSA. Collins described her amendment as a compromise designed to counter the White House veto threat. The Collins amendment would have allowed screeners to join a union and, like the McCaskill amendment, provided them with whistleblower protections and the right to appeal disciplinary actions. The Collins amendment failed by a 47-52 vote. Source: CCH Washington Bureau The following bills introduced over the month would:
EBSA extends Mental Health Parity Act rules through 2007. The US Department of Labor's Employee Benefits Security Administration (EBSA) has announced a technical amendment extending the interim final rules under the Mental Health Parity Act (MHPA) to December 31, 2007. MHPA provides health insurance parity between mental health benefits and other medical/surgical coverage relating to annual and lifetime caps on benefits. President Bush extended the sunset date of MHPA when he signed the Tax Relief and Health Care Act of 2006 (P. L. 109-432, 120 Stat. 2922) on December 20, 2006. When originally signed into law in 1996, the MHPA contained a sunset provision stating that it would not apply to benefits for services furnished on or after Sept. 30, 2001. Since then, MHPA has been amended five times to extend the sunset date. MHPA requires that annual or lifetime dollar limits for mental heath benefits be no lower than the dollar limits for medical/surgical benefits offered by a group health plan. The act applies to group health plans or health insurance coverage offered by issuers in connection with a group health plan that offers both mental health and medical/surgical benefits. However, it does not require plans to offer mental health benefits. EBSA issues guidance for fiduciary advisers on investment advice exemption in PPA. EBSA has issued guidance on a statutory exemption from the prohibited transaction rules for certain providers of investment advice ("fiduciary advisers") to participants in participant-directed account plans. The exemption, which was added by the Pension Protection Act of 2006 (PPA; P.L. 109-280), applies to fiduciary advisers that receive fees in connection with their services to participants. EBSA's guidance, issued in the form of a Field Assistance Bulletin, makes it clear that the PPA statutory exemption does not invalidate or otherwise affect prior Labor Department guidance on investment advice.
SSA issues tips on Form W-2. The Social Security Administration (SSA) has recently issued some tips on Form W-2. Saving and resuming W-2 online reports. W-2 Online only allows a user to save W-2s that have been worked on for up to 90 days. The SSA will delete any saved reports that are not submitted or updated within 90 days. Deleted W-2s in Business Services Online (BSO) cannot be retrieved. Saving W-2s is not the same as submitting them to the SSA. For more information visit www.socialsecurity.gov/employer/bsohbnew.htm. Try W-2c online. Filers can make corrections online. W-2c Online will allow users to create, print, and submit Forms W-2c directly over the Internet. Plus, W-2c Online is just as user-friendly as SSA's other options in the suite of electronic services. It is a free service. Visit www.socialsecurity.gov/employer, and choose "How to File." Special wage payments. SSA only accepts special wage payment reports from employers on paper Form 131, or via 3490 or 3480 tape cartridges. Special wage payments are discussed in IRS Pub. 957. Also, contact the Employer Services Liaison Officer in the applicable SSA region for assistance at http://www.socialsecurity.gov/employer/wage_reporting_specialists.htm. New Internet name. The SSA web site for assisting employers who file their W-2s electronically has a new name. It's now called "Employer W-2 Filing Instructions & Information." Three new topics have been added: 1) Before You File, 2) Electronic W-2 Filers, and 3) Social Security Number Verification Service; see www.socialsecurity.gov/employer. (SSA W-2 News, March 2007.) Congress reintroduces bills to prohibit "double taxation." The ability of states to impose their personal income taxes on the compensation of nonresident telecommuters would be limited under legislation reintroduced in both houses of Congress on March 6, 2007. An employee would have to be working within a state in order for that state to collect personal income tax from that employee under the bills. Similar legislation was introduced by Connecticut's delegation in the two previous sessions of Congress, but those bills never came to a vote. The legislation is intended to prevent New York from levying taxes on Connecticut telecommuters for work they perform in Connecticut on behalf of New York companies. Such workers must also pay personal income tax to Connecticut for the same work. (S.B. 785 and H.R. 1360, as introduced in Congress on March 6, 2007.) Daylight saving wage and hour issues arose this month. Last August, the Energy Policy Act of 2005 was signed into law. This Act changed the calendar dates for Daylight Saving Time in the United States. In most parts of the country, Daylight Saving Time has been changed from its traditional observance of the first Sunday in April, to the second Sunday in March, and from the last Sunday in October, to the first Sunday in November, meaning that it will now be observed three weeks earlier than in previous years, and will remain in effect one week longer. In 2007, Daylight Saving Time starts at 2 a.m. Sunday, March 11, when clocks will be set forward one hour. Shift workers on duty at that time will work one hour less, and paying them for a full shift may raise questions under the Fair Labor Standards Act. An additional hour of pay provided to an employee who works less than a "full" shift need not be included in calculating the worker's regular rate of pay when considering any overtime for that week. At the same time, the extra hour of pay may not be credited toward any overtime pay that may be due. When Daylight Saving Time ends in almost eight months (November 4, 2007), employees working a nine-hour shift because the clock is turned back must be paid for all hours worked, and the extra hour must be counted in establishing the hours worked in that week.
PBGC updates booklet on QDROs. The Pension Benefit Guaranty Corporation (PBGC) has issued an update of its booklet, "Divorce Orders & PBGC." The revised booklet, now titled "Qualified Domestic Relations Orders & PBGC," presents information on benefit options now offered by the PBGC as well as new model orders, such as a model order for providing child support. It also clarifies rules on when payments to an alternate payee may start and provides information on how to obtain certain participant information from the PBGC. The revised booklet is posted on the PBGC website at: http://www.pbgc.gov/workers-retirees/benefits-information/content/page13199.html. New regulations on pension distributions under QDROs issued by EBSA. The US Department of Labor announced an interim final rule regarding the qualified domestic relations order (QDRO) requirements of the Employee Retirement Income Security Act (ERISA). The rule is being issued under the Pension Protection Act of 2006, which requires the Labor Department to issue by August 2007 regulations clarifying that a domestic relations order otherwise meeting ERISA's QDRO requirements would not fail to be treated as a QDRO solely because of when it is issued or because it is issued after, or revises, another domestic relations order. The rule includes examples to address various circumstances involving the timing of a domestic relations order. "The publication of this rule is another step forward in implementation of the Pension Protection Act," said Bradford P. Campbell, acting assistant secretary of labor for employee benefits security. "I am pleased with the Department of Labor's progress in issuing the regulations and guidance required by this landmark legislation." The regulation is to be published in the Federal Register's March 7, 2007, edition. While the rule will become effective 30 days after publication, the public is invited to submit written comments electronically to e-ORI@dol.gov or through the federal e-rulemaking portal at www.regulations.gov.
SSA to increase billing threshold that triggers reviews of CEs. The Social Security Administration (SSA) has announced its intention to increase the billing threshold that triggers annual on-site reviews of medical providers who conduct consultative examinations for the SSA's disability programs under Titles II and XVI. Under the proposal, the threshold would be increased from $100,000 to $150,000. This increase would be the first since the threshold amount was established in 1991. Under the regulations that govern administrative determinations of claims for disability benefits under the Social Security program, the SSA may purchase, at its expense, a "consultative examination" when the agency needs additional information to make a disability determination and it is unable to obtain that information from existing medical sources. Regs. §404.1519s and §416.919s provide for oversight of "key" consultative examination providers. Among the existing alternative criteria that define who qualifies as a "key" provider is "any consultative examination provider with an estimated annual billing to the Social Security disability programs of at least $100,000." The SSA now is proposing to increase the threshold to $150,000 because costs have risen such that many more consultative examiners are now subject to review than they were when reviews began in 1991. To ensure that only the largest providers are subject to review, the threshold is being raised to an amount that approximates the rise in the cost of living over the past 16 years. SSA proposal would replace in-home hearing with teleconferences. The SSA is proposing to replace face-to-face conferences in Title II overpayment cases with telephonic or video teleconferencing when such conferences take place outside of the field office. Individuals who are charged with an overpayment would be given a choice to appear at a face-to-face conference in the field office or to participate via telephonic or video teleconferencing at a location of their choosing. This choice also would be provided to individuals charged with an overpayment in Title XVI cases. Amended regulations expand consideration of optometric evidence The SSA has finalized regulations that will expand the situations in which it considers licensed optometrists to be "acceptable medical sources" as described in Regs. §404.1513 and §416.913. Under current rules, licensed optometrists are an acceptable medical source only for the measurement of visual acuity and visual fields. The change will now allow an optometrist in any jurisdiction other than the Virgin Islands (which does not allow optometrists to administer or prescribe pharmaceuticals) to be an acceptable medical source for all visual disorders. The change is significant because, under the regulations, a disability claimant must show a medically determinable impairment with evidence from an "acceptable medical source.” According to the notice of final rulemaking, the revised regulations will allow the SSA to "make more decisions based on medical evidence supplied . . . from optometrists, rather than having to purchase time-consuming and expensive consultative examinations with ophthalmologists." There were no changes in the finalized regulations, which take effect on April 2, 2007, from the proposed amendments that were published one year ago.
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