New I-9 Form

As of April 3, 2009, all U.S. employers are required to use a new revised Form I-9. This new form contains several changes in accordance with final rules issued by the Department of Homeland Security.  You can download the new I-9 form by clicking on the website of the U.S. Citizenship and Immigration Services Agency (f/k/a the INS).  The form is also available in Spanish. 

The USCIS has also prepared a 45 page handbook for employers that should be helpful for any questions that you may have concerning the new I-9 form,

New Executive Orders for Federal Contractors

On January 30, 2009, President Obama issued three Executive Orders that impact federal contractors.  These Orders are pro labor and are intended to reverse positions taken during President Bush’s administration.

Nondisplacement of Qualified Workers Under Service Contracts -  this Executive Order provides for the continuation of employment of employees who are working pursuant to a service contract with the federal government, when that contract is awarded to a new contractor or subcontractor who will be performing the same or similar services at the same location.  The successor contractor and/or subcontractor will be required to offer the existing nonmanagerial and nonsupervisory employees the right to continue their employment under the new contract before being permitted to hire other employees.  The Order exempts certain contracts and permits a contracting agency to exempt other contracts or subcontracts if the agency determines that the application of these rules would impair their ability to procure services on an economic and efficient basis.

Notification of Employee Rights Under Federal Labor Laws -  this Executive Order requires all federal contractors and subcontractors to post a notice in all places where employees covered by the National Labor Relations Act work, informing them of their rights under the federal labor laws.  The Secretary of the U.S. Department of Labor has 120 days to initiate rulemaking to specify the size, form and contents of this notice, which is to be posted during the term of the contract.

Economy in Government Contracting -  this Executive Order requires that costs associated with activities undertaken to persuade employees to exercise or not exercise their rights to bargain collectively through representatives of their own chosing (e.g. unions) should be treated as “unallowable” and a federal contractor may not be reimbursed for such costs.  The Federal Acquisition Regulatory Council has 150 days to adopt rules and regulations needed to implement this Order.

What to Expect in 2009

Expect increased activity in the labor and employment law arena from Washington, DC in 2009.  The Labor Movement invested more than $300 million and countless volunteer hours to help elect President-elect Obama and enlarge the Democratic majority in Congress and it expects both to enact new legislation and initiate administrative activities that will benefit labor unions and workers.

The number one priority of the labor movement is the Employee Free Choice Act (“EFCA“).  EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure.  If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards.  After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement.  If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (“FMCS“) would then become involved in the negotiations.  If a contract is not agreed to in the following 30 days,  the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues.   President-elect Obama was a sponsor of the EFCA bill when  he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007.  It is very likely that EFCA will be enacted, but not necessarily in the first 100 days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory fine process for unfair labor practices.

President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (“NLRB“) and to designate a new Chairman and General Counsel of the Board.  These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration.   Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.

The U.S. Department of Labor (“DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview.  There are serious efforts to increase the minimum wage (“FLSA“) and to enact new safety rules (“OSHA“).  There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.

Several organizations that advocate for a more family friendly workplace  are expected to make an effort to have the Family & Medical Leave Act (“FMLA“) require paid leave.  There are several states that have recently passed such legislation.  The recently promulgated FMLA regulations are not expected to be changed in the near future.

President-elect Obama  also has the opportunity to appoint the Chairman, General Counsel and  Commissioners to the Equal Employment Opportunity Commission (“EEOC“) and that agency is expected to increase its enforcement efforts during the new administration.  Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.

There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.