February 2009

President Obama’s First Twenty Days Include
Aggressive Actions On The Labor & Employment Front

Since his inauguration, President Obama has initiated a number of actions impacting on our nation’s labor and employment laws. The actions outlined below suggest that President Obama is, in fact, committed to the “cause” of labor and that reintroduction of the Employee Free Choice Act may occur in the near future.

1. Notification of Employee Rights Under Federal Labor Laws: This January 30, 2009 Executive Order requires employers with federal government contracts totaling at least $100,000 to post a notice informing employees of their right under the National Labor Relations Act to engage in union activities. The Secretary of Labor will establish the wording and size of the Notice within the next 120 days. President Obama’s Executive Order expressly revokes a Bush Executive Order which required employers to post notices advising employees of their “Beck” rights.

2. Economy in Government Contracting: This January 30, 2009 Executive Order prohibits employers with federal government contracts totaling at least $100,000 from using any of those funds for the purpose of persuading employees not to organize a union. Rules and Regulations implementing this Order will issue from the Federal Acquisition Regulatory Council within 150 days.

3. Nondisplacement of Qualified Workers Under Service Contracts: This January 30, 2009 Executive Order requires that a government service contractor, that replaces another contractor, give a right of first refusal to the employees of the predecessor contractor when hiring employees to perform the services at the government location.

4. Use of Project Labor Agreements for Federal Construction Projects: This February 6, 2009 Executive Order makes it the “policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements” for construction projects totaling $25 million dollars. These project labor agreements would require all contractors working on the project to recognize a labor organization and be bound to a collective bargaining agreement for the work performed on the project.

5. Lilly Ledbetter Fair Pay Act: This was the first legislation signed into law by President Obama and it makes it easier for employees, who believe they were not paid the same as others based on sex, to sue employers for back wages.

6. New I-9 Form: The U.S. Citizenship and Immigration Services (USCIS) issued a new I-9 Form, which was set to be effective on February 2, 2009. The USCIS has delayed the effective date of the new I-9 Form by 60 days or until April 3, 2009. Employers should refrain from using the I-9 Form that was scheduled to be effective on February 2, 2009, until receiving further guidance by USCIS.

7. E-Verify: E-Verify is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
   
   Federal Agencies had previously been directed to require that federal contractors agree to electronically verify the employment eligibility of their employees. This program was originally scheduled for implementation on January 15, 2008, implementation which was delayed to February 20, 2009 as the result of litigation brought by the Chamber of Commerce and other business groups. The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify now has been delayed until May 21, 2009.
   
   The rule will only affect federal contractors who are awarded a new contract after May 21st that include the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704). Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.

If you have any questions about any of the items listed above please do not hesitate to contact any of the lawyers at the Lowenbaum Partnership, L.L.C.

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