On Wednesday, the Senate Health, Education, Labor and Pensions (HELP) Committee voted Republican Brian Hayes and Democrats Mark Pearce and Craig Becker forward for the National Labor Relations Board (NLRB).   AGC, along with other business groups, sent a letter to the HELP Committee expressing concern over both the committee process of not holding a hearing on Becker as well as concerns with Becker's writings and beliefs with regard to labor law due to his expressed view that labor law and national labor policy can be changed through NLRB decisions as opposed to going through the legislative process. 

The Employee Free Choice Act, or Card Check, could be affected by Becker's beliefs. Thought it is currently stalled in Congress, components of the Employee Free Choice Act, or Card check, could be implemented by rulings of the NLRB under Becker's guidance.

Senator John McCain (R-Ariz.) is expected to put a hold on Becker, preventing a vote in the full Senate, and Senator Orrin Hatch (R-Utah) has also objected to Becker's confirmation.   While this will slow down Becker's nomination, it also will likely hold up the approval of Hayes and. Pearce because NLRB appointments are usually voted on in a package rather than individually.   The timing of any Senate floor vote is uncertain due to the expected hold on the Becker nomination.

This week, House and Senate conferees working on the appropriations bill for the Department of Homeland Security agreed to an extension of the E-Verify electronic verification system for three years.   

Conferees negotiated a simple three-year extension after considering differences on both sides.  For example, the Senate version of the bill would have made the program permanent and allowed for employers to verify existing employees. 

The extension would keep the program voluntary and authorize the continuation of the program in its current form.  However, the bill still needs to see final action on the floor of both the House and the Senate.   AGC expects the legislation to reach the floor before the end of October, and will monitor the issue closely.

On September 23, AGC submitted supplemental comments to a July 14, 2009 Federal Acquisition Regulation (FAR) Council notice of proposed rulemaking, which implemented President Obama's Executive Order 13502 to create new FAR contract clauses to be included in federal contracts should an agency choose to require a Project Labor Agreement (PLA) on a particular federal construction project.

AGC originally submitted comments on the proposed rule that encourages (not requires) agencies to consider (not necessarily adopt) a PLA requirement on large-scale construction projects (defined as projects with a total cost to the federal government of $25 million or more) on a project-by-project basis where certain criteria are met.

AGC's supplemental comments focused on concerns that a requirement for a PLA might be placed after contract award. AGC opposes this ex post facto imposition as it directly interferes with the relationship between a prime contractor and the subcontractors, and causes massive disruption of the procurement process. AGC strongly urged the FAR Councils to clarify in the Final Rule that agencies, contracting officers and their representatives are forbidden from pursuing such course of action.

Read more about AGC's Comments and the Proposed Rule here.

In an address to the AFL-CIO convention on Tuesday, Senator Arlen Specter (D-Pa.) unexpectedly announced that some senators had come up with a "compromise" on the Employee Free Choice Act (EFCA) and that it would pass this year. This announcement remains more wishful thinking on the part of top EFCA supporters as no official compromise has been made and there are not enough votes in the Senate to stop a filibuster at this time. The small group of pro-EFCA senators has been trying to find a compromise to the card check provision, and it is believed that any compromise would still require mandatory arbitration, among other items opposed by AGC.  AGC remains opposed to compromise on this bill as it is likely to be used as a Trojan Horse to pass EFCA in its current form.

It is important to continue communicating your opposition to elected officials on the Employee Free Choice Act, any compromise or cloture in the Senate on the bill.  Please use the AGC Legislative Action Center to send a letter to your members of congress in opposition to Card Check or any compromise.

The key Senate targets remain:

• Mark Begich (D-Alaska)
• Blanche Lincoln (D-Ark.)
• Mark Pryor (D-Ark.)
• Dianne Feinstein (D-Calif.)
• Mark Udall (D-Colo.)
• Michael Bennet (D-Colo.)
• Evan Bayh (D-Ind.)
• Mary Landrieu (D-La.)
• Max Baucus (D-Mont.)
• Ben Nelson (D-Neb.)
• Harry Reid (D-Nev.)
• Arlen Specter (D-Pa.)
• Mark Warner (D-Va.)
• Jim Webb (D-Va.)

A rule requiring federal contractors and subcontractors to use the Department of Homeland Security U.S. Citizenship and Immigration Services' E-Verify system to verify their employees' authorization to work in the U.S. is now in effect.  The rule applies to federal solicitations and contract awards government-wide beginning September 8.   Click here for information on the free webinars DHS is offering on the E-Verify program.

The rule applies only to employers with direct contracts with the federal government and, via a flow-down requirement, to their subcontractors.  It does not apply to employers working only on federally funded projects or on other projects not under contract with a federal agency.

The rule requires the insertion of a new clause in certain federal contracts and subcontracts.  Prime contracts below the simplified acquisition threshold of $100,000 and those with performance terms of less than 120 days are excluded.  The clause requires the contractor to use E-Verify to confirm employment eligibility of all new employees hired during the contract term and all current employees assigned to work on a federal job within the U.S.  It also allows, but does not require, the federal contractor to use E-Verify to confirm eligibility of all employees, regardless of whether they are assigned to work on a federal job.  Currently, use of E-Verify to confirm anyone other than a new hire (including applicants and current employees) is prohibited. 

The FAR Council issued the final rule in November 2008.  In response to a legal challenge to the rule and in order to give the new administration time to fully review the matter, the government agreed to suspend the rule on three separate occasions, but, in a July 8 statement, DHS Secretary Janet Napolitano announced that DHS will "push ahead with full implementation" of the rule without further delay. 

Although the litigation continues, we are advising contractors to carefully review all new solicitations and contracts for federal projects and comply with any E-Verify requirements at this time.  AGC will continue to monitor all related litigation and legislation and will report on significant developments.

Click herefor the E-Verify Supplemental Guidance for Federal Contractors issued by USCIS on September 8. Click here for DHS's list of Frequently Asked Questions (FAQ's) for Federal Contractors and E-Verify.  Click here for more information about critical components of the rule.  Click here for information about free webinars on the E-Verify program.

Further guidance on immigration compliance is available in an MP3 download of a live educational session held at AGC's Annual HR Professionals Conference in June 2008.  An immigration law update will also be provided at AGC's next HR Professionals Conference, which will take place October 27-29, in Atlanta, Ga. Click here for conference details and registration.

Senator Tom Harkin (D-Iowa) has taken the chairmanship of the Senate Health, Education, Labor and Pension (HELP) Committee.  Senator Christopher Dodd (D-Conn.) had been standing in prior to former HELP Chairman Senator Ted Kennedy's (D-Mass.) death to help marshal health care reform through the Senate.   In an agreement made with democratic leaders in the Senate, Sen. Dodd will continue his role as the point person in the health care debate for the HELP Committee and remain chairman of the Banking Committee.  

Sen. Harkin is the top supporter of the "so-called" Employee Free Choice Act (EFCA) in the Senate and is pushing for a vote on the bill.  Currently, there are enough votes to move EFCA in the committee and the sticking point remains the ability to garner 60 votes for cloture to end debate on the Senate floor.  Sen. Harkin is trying to work with other EFCA supporters to find some sort of compromise, but announced at a pro-EFCA rally today that he does not think a bill will pass this year.  AGC strongly opposes EFCA and sees any compromise as a Trojan Horse to push through the legislation as it currently exists.  Please continue to send letters to your Members of Congress opposing EFCA through AGC's Legislative Action Center.

President Obama will continue his push for sweeping reform of health care with an address to a joint session of Congress on Wednesday night. Obama will try and regain control of the issue after weeks of negative press and public opposition to the current reform package in town hall meetings across the country. The speech on Wednesday night is expected to focus on the need for reform but may fail to provide additional details on a reform package, including a public option.

Despite the diminishing hope that the Senate can deliver a bipartisan bill, a small group of senators will continue to meet to find common ground. The group dubbed the "Gang of 6" - including Senators Max Baucus (D-Mont.), Jeff Bingaman (D-N.M.), Kent Conrad (D-N.D.), Charles Grassley (R-Iowa), Mike Enzi (R-Wyo.) and Olympia Snowe (R-Maine) - plans to meet Friday. If the Senate is unable to get bipartisan support, it is possible Democratic leaders may attempt to use reconciliation to pass health care reform - a procedural motion to avoid a filibuster - but that move could prove to be troublesome for Democrats and fail to deliver on all of their goals for reform. In the House, Speaker Pelosi continues to announce that they will not pass a reform bill without a public option.

AGC remains opposed to the current House bill, H.R. 3200. The bill includes an employer mandate which fails to increase affordability and will restrict job growth through the onerous payroll tax penalty. The bill includes the creation of health care "exchanges," which limit access to all employers and offers tax credits that will help very few employers. The government run public option in the bill will compromise the viability of private insurance and ultimately force all individuals into the public plan.  Additional concerns include the bill's failure to address malpractice reform and expanding the use of Health Savings Accounts. Finally, the income surtax in the bill will impose an additional tax on individuals and some construction employers that are organized as 'S' corporations or other flow-through entities, making it even more difficult for employers to operate and grow their businesses in the current economy.

The Department of Homeland Security (DHS) on July 8 announced the administration's intent to "push ahead with full implementation" of a rule requiring federal contractors to use the E-Verify system to verify employees' authorization to work in the U.S.  The E-Verify rule will apply to federal solicitations and contract awards government-wide beginning September 8. 

In response to a legal challenge to the rule and in order to give the new administration time to fully review the matter, the government agreed to suspend the rule on three separate occasions, with the latest delay date of September 8, 2009.  

The rule requires the insertion of a new clause in certain federal contracts and subcontracts.  Prime contracts below the simplified acquisition threshold of $100,000 and those with performance terms of less than 120 days are excluded.  The clause requires the contractor to use E-Verify to confirm employment eligibility of all new employees hired during the contract term and all current employees assigned to work on a federal job within the U.S.  It also allows, but does not require, the federal contractor to use E-Verify to confirm eligibility of all employees, regardless of whether they are assigned to work on a federal job.  Currently, use of E-Verify to confirm anyone other than a new hire (including applicants and current employees) is prohibited. 

AGC will continue to monitor all related litigation and legislation and will report on significant developments.

Click here for DHS's list of Frequently Asked Questions (FAQ's) for Federal Contractors and E-Verify.  Click here for more information about critical components of the rule.

Meanwhile, further guidance on immigration compliance is available in an MP3 download of a live educational session held at AGC's Annual HR Professionals Conference in June 2008.  An immigration law update will also be provided at AGC's next HR Professionals Conference, which will take place October 27-29, in Atlanta, Ga. Click here for conference details and registration.

The comment period on the proposed rule relating to project labor agreements, which had expired August 13, wasextended last week for 30 days, with a new deadline of September 23.

The proposed rule would implement President Obama's executive order encouraging (but not requiring) agencies to consider requiring PLAs on projects over $25 million.  Read more about the rule and find AGC's comments here.

If you would like to submit your views, you can send comments by mail to General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Hada Flowers, Washington, D.C. 20405, or by fax to (202) 501-4067. Comments can also be submitted online via the federal eRulemaking portal by clicking here.

The comment period on the proposed rule relating to project labor agreements, which had expired August 13, was extended for 30 days, with a new deadline of September 23. The proposed rule would implement President Obama's executive order encouraging (but not requiring) agencies to consider requiring PLAs on projects over $25 million.  Read more about the rule and find AGC's comments here.