STATE UPDATES

Note: GIS strongly recommends that our clients review the state statutes further and consult with their legal counsel on the impact these statues may have on them.

Connecticut
The Connecticut House has passed a bill (H.B. 5521) that would ban an employer (and its agents, representatives, or designees) from requiring, as a condition of employment, that an employee or prospective employee consent to the creation of a credit report that includes information about his or her: (1) credit score; (2) credit payment history; (3) credit, savings or checking account balances; or (4) savings or checking account numbers. The House passed the bill on May 12, 2009, by a vote of 109-43.

The bill can be found at: http://www.cga.ct.gov/2009/FC/2009HB-05521-R000959-FC.htm.

The bill creates exceptions to the ban if one of the following conditions are met:

Under the bill’s provisions, employee/prospective employee complaints regarding potential violations may be filed with the state’s labor commissioner. Employers who violate the bill’s provisions may be subject to the department of labor for a $300 civil penalty for each violation.

The bill would take effect on October 1, 2009. Connecticut’s legislative session is scheduled to end June 3.

Indiana
Effective July 1, 2009, every employer subject to the provisions of Indiana's minimum wage law or to any rule or order issued under the law shall post in a conspicuous place in the area where employees are employed a single page poster providing employees notice of the following information: the current Indiana minimum wage; an employee's basic rights under Indiana's minimum wage law; contact information to inform an employee how to obtain additional information from or to direct questions or complaints to the Indiana Department of Labor (S. 465, L. 2009).

Mississippi
The state has revised the Commercial Driver's License (CDL) Act to impose responsibilities on employers of commercial motor vehicle drivers. Specifically, such employers must require any person who applies to be a commercial motor vehicle driver to provide the employer, at the time of the application, with specified employment-related information about the 10 years preceding the date of application (H. 1115, L. 2009, effective July 1, 2009).

Rhode Island
On May 12, 2009, the Rhode Island House, by a 38-33 vote, passed a bill (H.B. 5143) that would require private employers to verify the work eligibility of newly hired employees using the federal government’s E-Verify program. This marks the third time that an “E-Verify” bill has passed the Rhode Island House. E-Verify is the voluntary, web based-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The E-Verify bill now heads to the state senate where it has died in committee in each of the past two legislative sessions.

Introduced by Representative Jon Brien (D-Woonsocket), the bill would require private employers in the state with 200 or more employees to apply to participate in E-Verify by January 1, 2010. Employers with at least 50, but fewer than 200 employees must apply to participate in the program no later than July 1, 2010. Employers with fewer than 50 employees, but at least three must apply to participate in E-Verify no later than January 1, 2011. The bill can be found at: http://www.rilin.state.ri.us/BillText09/HouseText09/H5143.pdf.

In March 2008, Rhode Island Governor Donald L. Carcieri signed Executive Order (EO) 08-01 entitled “Illegal Immigration Control Order,” which is designed to bolster the state's efforts to respond to illegal immigration in the state. The EO requires state agencies and vendors to verify the legal status of all employees using E-Verify, allows the state to inform people whose identity was stolen and directs the Rhode Island State Police and the Department of Corrections to work with US Immigration and Customs Enforcement, the Department of Homeland Security’s largest investigative arm, to ensure federal immigration law is enforced.

Utah
Utah recently passed a new law, the Employment Selection Procedures Act, Utah Code 34A-1-202, which prohibits what personal information an employer with over 15 employees in the state of Utah may require an applicant to provide in the pre-employment context.

This new law went into effect on May 12, 2009. Specifically, the law states that employers may not request information related to an applicant's social security number, date or birth or driver license number until either:

Employers subject to this law may also not use information about an applicant for any other purpose than to determine whether the employer will hire the applicant as an employee. The law additionally places requirements for employers to maintain a policy regarding the retention, disposition, access, and confidentiality of this information. Finally, employers may only keep such information about applicants about whom they do not hire for a period of two years after obtaining the information from the applicant.

FEDERAL UPDATES

Immigration, Border Security Top Questions For Napolitano
Senate and House lawmakers pressed Homeland Security Secretary Napolitano Tuesday to explain the Obama administration's policies for enforcing border security and immigration laws, indicating areas that Congress will likely grapple with putting together the FY10 Homeland Security budget.

In separate, back-to-back hearings, lawmakers expressed support for President Obama's request, which would provide the department $42.7 billion in discretionary funding next fiscal year.

But they questioned Napolitano on matters such as funding for border security efforts, the department's priorities for targeting illegal immigrants inside the country and whether federal contractors should be required to verify the legal status of their workers.

Senate Homeland Security and Governmental Affairs Chairman Joseph Lieberman and ranking member Susan Collins said they believe the department will need more money for border security efforts.

"Critical resources are needed to supplement efforts already underway on our Southwest border to combat drug, gun and cash smuggling by the drug cartels in Mexico," Collins said.

Lieberman and Collins recently succeeded in amending the FY10 budget resolution to increase by $550 million funding for border protection efforts by the Homeland Security and Justice Departments.

Lieberman confirmed Tuesday he will ask Senate appropriators to add at least $500 million to the proposed FY10 Homeland Security budget for border security.

About $260 million of that funding would go toward hiring and training 1,600 Customs and Border Protection officers and 400 canine teams.

The department's proposed budget only seeks to hire and train 65 CBP officers and 44 new Border Patrol officers.

At a separate hearing, House Homeland Security Appropriations Subcommittee Chairman David Price, D-N.C., pressed Napolitano on whether she believes the top priority for Immigration and Customs Enforcement should be finding and deporting illegal immigrants who have committed serious crimes.

Napolitano hedged slightly, saying finding and deporting criminal illegal immigrants is "a high interest" for ICE. She said ICE not only has to go after criminal illegal immigrants but build cases for prosecuting employers who knowingly hire undocumented workers.

"In the world of illegal immigration, ICE has to multitask," Napolitano said.

Price also said lawmakers will have to sort out the pros and cons of two programs to enforce immigration laws. The Secure Communities program uses biometrics, namely fingerprints, to identify illegal immigrants inside federal, state and local jails.

The other effort, known as the 287(g) program, helps train state and local law enforcement officials to enforce immigration laws.

Price expressed more support for the Secure Communities program, saying the 287(g) program is costly and has led to strained relationships between local law enforcement agencies and immigrant communities.

Napolitano said Secure Communities is "working very well," adding that she predicts the department will be growing the program in coming years.

But she said she wants to make agreements under the 287(g) program "more uniform" across the country.

House Appropriations ranking member Jerry Lewis said during the hearing he was concerned that Homeland Security is shifting an emphasis and resources away from arresting undocumented workers and finding fugitive illegal immigrants.

On another front, Napolitano expressed support for implementing a rule that would require most federal contractors to use the E-Verify system to confirm the legal status of their workers.

The rule scheduled to go into effect in January, has been postponed until the summer.

FTC Red Flags Rule
The Federal Trade Commission (FTC) announced that it will delay enforcement of the Red Flags Rule until August 1, 2009 “to give creditors and financial institutions more time to develop and implement written identity theft prevention programs.” Implementation for the Red Flags Rule had been scheduled for May 1, 2009. The FTC press release announcing the delay is available at this link.

E-VERIFY UPDATES

Federal Contractor rule delayed until September 8, 2009
The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until September 8, 2009.

The rule will only affect federal contractors who are awarded a new contract after September 8, 2009 that includes 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.

House subcommittee marks up 2010 Homeland Security Appropriations bill, would extend E-Verify until 2011 — PENDING LEGISLATION
On June 8, 2009, the House Appropriations Subcommittee on Homeland Security unanimously approved the Fiscal Year (FY) 2010 appropriations bill for the Department of Homeland Security, which among other things, would extend the federal government’s E-Verify program for two years until 2011. E-Verify is the web-based program operated by DHS, in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees. Overall, the discretionary total in the bill for DHS is $42.625 billion. This is $2.6 billion, or 6.5 percent, above the comparable FY 2009 amount. The bill is next scheduled for a markup by the full Appropriations Committee on June 12.

STATE UPDATES

Georgia
Georgia counties and municipalities that do not register and participate in E-Verify verify the employment eligibility of their new hires using the federal government's E-Verify program will risk losing state money for building roads, according to legislation (H.R. 2) passed by the state senate on April 1 by a vote of 30-17. The bill would take effect January 1, 2010. The bill had passed the House on March 12, but owing to differences between the two versions, the House must either pass the bill again or it will go to conference committee. The bill can be found at: http://www.legis.state.ga.us/legis/2009_10/fulltext/hb2.htm.

Mississippi
The Mississippi Employment Protection Act (S.B. 2988): On July 1, 2008, all Mississippi agencies and political subdivisions, all public contractors, and private employers with 250 or more employees became subject to the E-Verify requirement. On July 1, 2009, private employers with 100 or more employees will also become subject to the requirement.

Nebraska
Governor signs into law a bill mandating that public employers, contractors use E-Verify
Nebraska Governor Dave Heineman signed into law a bill (LB 403) on April 8, 2009, requiring public employers (state agencies and political subdivisions) and contractors to register with and use the federal government's E-Verify program to determine the employment eligibility of new hires starting October 1. While the bill does not require private employers to use E-Verify, the bill creates tax incentives for entities that use E-Verify. Further, for two years after the bill's operative date, the Nebraska Department of Labor will make available to all private employers information regarding E-Verify and encourage the use of the program. The department must report to the state legislature no later than December 1, 2011, on the use of a federal immigration verification system by Nebraska employers. The law can be found at: http://www.unicam.state.ne.us/FloorDocs/Current/PDF/Final/LB403.pdf.

Rhode Island
Rhode Island House passes E-Verify compliance bill (May 14, 2009)

On May 12, 2009, the Rhode Island House passed a bill (H.B. 5143) that would require private employers to verify the work eligibility of newly hired employees using the federal government’s E-Verify program. The bill requires private employers in the state with 200 or more employees to apply to participate in E-Verify by January 1, 2010. Employers with at least 50, but fewer than 200 employees must apply to participate in the program no later than July 1, 2010. Employers with fewer than 50 employees, but at least three must apply to participate in E-Verify no later than January 1, 2011. The bill can be found at: http://www.rilin.state.ri.us/BillText09/HouseText09/H5143.pdf.

South Carolina
South Carolina employers with 100 or more employees must perform the special verification for newly-hired employees starting July 1, 2009. These employers will be required either to use E-Verify or review a qualifying driver’s license or qualifying identification card. State contractors with 500 or more employees became subject to the same requirements on January 1, 2009.

Look for more legislative updates coming soon . . .

Sources:
The Federal Trade Commission
CCH