These regulations require that employers use the E-Verify system to determine that current employees – even long-term employees – working on federal projects can legally work in the U.S.
Some important deadlines to keep in mind:
The employer must enroll in E-Verify, or re-enroll as a federal contractor, within 30 days after a federal contract is signed
Within 90 days, the employer must begin verifying the status of new hires
Within 90 days, the employer must check the work status of all current employees who will work on the federal project
Any subcontractors hired must also meet the same deadlines
Even a company that has used E-Verify for many years must re-enroll once a federal contract is signed. “It’s very important that employers understand that they have to be identified and enrolled as a federal contractor,” says Cynthia Lange, an attorney with Fragomen, Del Rey, Bernsen & Loewy, LLP.
This is a reversal in regulations, since in the past employers were prohibited from using E-Verify to determine the work status of any existing employees.
Business owners may be tempted to enroll in E-Verify immediately, but experts urge them to wait until a federal contract is signed. “Businesses that didn’t hold a new or current contract with the federal government will most likely have to re-enroll once a new contract is signed,” according Lange.
The mandatory use of E-Verify by federal contractors was first proposed by then-president George W. Bush in June 2008. In November 2008, the final regulations to enforce the executive order were issued. However, like a number of other executive orders, it was put on hold until President Obama took office.
The mandatory use of E-Verify by federal contractors was contested in court by a coalition of employer’s groups, including SHRM, the Society for Human Resource Management.
E-Verify is a joint venture between the Department of Homeland Security, the Social Security Administration and USICS, the Immigrations and Customs Service.
Under the new rule, certain impairments will create a presumption of disability. These impairments include epilepsy, diabetes, multiple sclerosis, developmental disabilities, deafness, blindness, use of a wheelchair due to mobility problems, autism, cerebral palsy, HIV/AIDS, muscular dystrophy, major depression, bipolar disorder, partial or complete amputations, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.
The new ADA rules mean that an employee who has been diagnosed with any of those conditions is presumed to be disabled and entitled to reasonable accommodation.
This may seem to be a common-sense approach to disabilities, but it has not always been so.
Under the old rules, each employee claiming a disability had to individually demonstrate that the condition limited one or more major life activities. A very large company might have 10 blind employees. Each blind employee would have to individually prove that blindness impaired their performance at one or more major life activities like reading, walking, using a phone book, using public transportation, cooking, shopping, personal grooming, etc.
An individualized assessment of whether a substantial limitation exists should still be done, according to the EEOC. However, the federal agency claims this “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”
Employers should note that the list of impairments is not exhaustive. Other conditions (more…)
Experts are predicting that the Employment Non-Discrimination Act or ENDA has an excellent chance of being signed into law within the next 12 months.
Senator Jeff Merkley of Oregon introduced it in the Senate as S. 1584 where it garnered 39 co-sponsors.
The bill is currently being debated in the House Education and Labor Committee. President Barack Obama has expressed strong support for ENDA and urged Congress to pass it.
While a number of states including Washington, New Jersey, Illinois and California have laws that prohibit employment discrimination against homosexuals, there is no federal law at this point. In some states such as Oklahoma, an employer can legally pay homosexuals less than their heterosexual coworkers. An employer can even refuse to hire an applicant who is homosexual. ENDA would change that.
After more than 15 months of debate, the E-Verify mandate for federal contractors went into effect on September 8, 2009. The regulation also applies to most sub-contractors working on federal projects.
The new regulations apply to any business that signs or renews a federal contract worth $100,000 or more, on or after September 8, 2009. Federal contractors are also required to ensure that any sub-contractor they hire complies with the E-Verify regulations, which adds another layer of administration for many employers.
Employers may think they are covered because they already use E-Verify for all new hires, but they will be mistaken. The new regulations require employers to enroll anew in E-Verify, designating their business as a federal contractor.
A unique feature of the system is that employers must verify the work authorization of existing employees working on federal projects, as well as new hire. This means that even an employee who has been with the company for 50 years must prove that he or she is legally authorized to work in the U.S.
In a business where a single employee may handle varied tasks, it can be difficult to determine who is and is not working on a particular federal contract. In that case, the employer can verify the work authorization status of all existing employees.
However, if an employer chose to verify the work authorization status of only Hispanic employees, or only those who were non-citizens, that would be illegal discrimination based on race, color or national ancestry. The employer must re-verify all employees, or only those working on federal projects.
As part of the DHS E-Verify system, an employer can require that an employee or new hire who is a citizen use a Social Security card as one of the identity documents required on the I-9. Employers who do not use E-Verify still cannot dictate which identity documents an employee chooses to use, from the list provided on the I-9 form.
However, not every state has a minimum wage. In fact, in Alabama and four other states (Louisiana, Mississippi, South Carolina and Tennessee), if an employee isn’t covered under the federal minimum wage, employers can legally pay that worker as little as $1.00 per hour. That’s assuming, of course, that a company could find an employer willing to work for so little. This is because those states have no minimum wage law.
Because of this recent increase, Georgia employers and employers across the country must update their labor law posters. The law requires that whenever a change is made in any labor law, state of federal, companies must display the updates posters in a place where all employees have easy access. Failure to display these posters can result in fines and penalties.
However, even in those states, employees who are eligible for the federal minimum wage must be paid $7.25 per hour. The federal minimum recently increased by 70 cents from $6.55 to $7.25 per hour as part of the Fair Minimum Wage Act of 2007. That Act provided 3 increases in the federal minimum wage over three years. These 70 cent increases took place on July 24 in 2007, in 2008 and in 2009.
Federal minimum wages are set by the FLSA (Fair Labor Standards Act of 1938). The FLSA applies to all businesses with at least $500,000 in annual revenue and to employers engaged in interstate commerce. FLSA can also apply to individual (more…)