By Susan Schoenfeld, Senior Legal Editor

In the race toward the Presidential election, 2008 is becoming the year of monumental changes through proposed legislation and regulations. HR professionals came together this week to hear the Society for Human Resource Management's (SHRM) analysis of the hottest bills before Congress at SHRM's 2008 Employment Law and Legislative Conference held in Washington, D.C.

What does SHRM think are the key issues for HR professionals? According to Michael P. Aitken, Director of Government Affairs for SHRM, the issues to watch include:

• Employment eligibility verification
• FMLA military leave
• Proposed FMLA regulations
• ADA restoration

Employment Verification Bills Lead SHRM's List

The leading concern for SHRM in this 110th Congress is employer verification of employee identity and eligibility to work. Aitken described several bills that are circulating in Congress this year, and outlined the pros and cons of each bill, as SHRM sees it.

Secure America through Verification and Enforcement (SAVE). First, the SAVE Act of 2007 (H.R. 4088), introduced by Rep. Heath Schuler (former Washington Redskin quarterback), makes the current electronic verification system for employment, E-Verify, the permanent system for use by employers. SAVE would be effective for federal agencies, federal contractors, critical infrastructure employers with 250 or more employees within one year after enactment. Other, smaller employers would be phased in within the next four years, according to the size of the employer.

The SAVE Act would require employers to check each new employee's work eligibility using the E-Verify system within three days of hire, and more importantly, of all previously hired employees. within four years of the bill's enactment. The bill requires employers to attest on the I-9 that they had examined produced documents to ensure authenticity. The bill directs the Social Security Administration to notify employers of "no match" determinations, and to have such information to be corrected within 10 days, or the employee must be terminated.

New Employee Verification Act of 2008. The bill for employment verification favored by SHRM is the New Employee Verification Act of 2008 (H.R. 5515), or NEVA. NEVA would create a new electronic verification system for employment within three years of enactment. Under NEVA, employers would be required to participate in either the Electronic Employment Verification System (EEVS), or a voluntary biometric secure system called the Secure Electronic Employment Verification System (SEEVS). Under NEVA, employers would enroll in the system through their state new hire reporting process, rather than the Department of Homeland Security.

NEVA would not require employers to reverify all employees, but would require reverification of employees whose work authorization documents have expired. The legislation would require employers to use either the EEVS system or the SEEVS system beginning on the date of hire and ending at the end of the third business day after the employee has reported to work. In this way, Aitken explained, verification would be completed at the very beginning of the employment process, minimizing any disruption in the workforce and loss of work time.

Perhaps one of the more revolutionary aspects of NEVA is the proposed use of "non wallet" identity information and biometrics for verification purposes. Under the NEVA bill, the SEEVS system would verify the identity of an employee by accessing so-called "non wallet" identity information through tailored data mining in publicly available data bases. For example, the employer would ask the individual question such as "What was the make and model of her last car?" and "What was the amount of rent or mortgage payment last paid, and to whom it was made?" These questions, based on questions already asked by many credit bureaus, would enable employers to verify identity. The employer would also be able to determine identity by using biometrics (e.g., finger prints, retinal scan), once an employee's identity had been verified. For security purposes, the biometrics would then be split from individually identifiable information.

Family Military Leave and the Proposed FMLA Regulations

As has been widely reported, on January 28, 2008, President Bush signed the National Defense Authorization Act (NDAA) into law. The NDAA amended and expanded the Family and Medical Leave Act (FMLA) for the first time since the law was passed 15 years ago to provide for family military leave for an injured service member as well as for family members serving in the military or called to active duty.

Under the NDAA's amendments to FMLA employers are required to grant FMLA-qualified employees up to 12 weeks of job protected leave because of any qualifying exigency (to be defined by the Secretary of Labor) arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces in support of a contingency operation.

The law also allows eligible employees to take up to 26 workweeks for leave during a single 12-month period if the employee is the spouse, son, daughter, parent, or next of kin caring for a military service member recovering from an injury or illness suffered while on active duty in the armed forces. The 26 workweeks are available only during one, single 12-month period.

Eligible employees are entitled to a combined total of 26 workweeks of leave in a 12-month period for leave to care for a military service member and any other FMLA-qualified leave (e.g., serious health condition, birth of a child). The provisions of the law allowing for leave to care for an injured or ill service member do not limit the availability of leave for other FMLA-qualified reasons during any other 12-month period.

Effective dates of family military leave provisions. The new provision of FMLA providing 26 weeks of unpaid FMLA leave in a single 12-month period for qualified employees whose spouse, son, daughter, parent, or next of kin requires care while recovering from an injury or illness suffered while on active duty in the armed forces is effective immediately.

According to DOL, the new FMLA leave provision that allows an employee to take 12 weeks of FMLA leave in a 12-month period for any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces is not yet effective. See DOL's website for more information. DOL has stated that employers will not be required to grant such leave until the Secretary of Labor issues final regulations defining "any qualifying exigency." In the interim, DOL encourages employers to provide this type of leave to qualifying employees.

Proposed FMLA Regulations. Not coincidentally, the DOL proposed new FMLA regulations on February 11, 2008. In addition to proposed regulations defining the terms and conditions of family military leave, the proposed regulations cover longstanding issues raised in court cases interpreting the FMLA, as well as comments received by DOL last year. The proposed regulations address questions regarding notice requirements for employers and employees, medical certification requirements, privacy interest in health information, intermittent leave, medical certification, and what constitutes a "serious health condition" under the FMLA.

Comments on the proposed regulations from employers and employees must be received on or before April 11, 2008. The DOL has not announced a time frame for issuing final regulations, but it is anticipated that the final regulations will be published before the end of 2008. To see the full text of the proposed regulations, go to the DOL's Wage and Hour Division website.

ADA Restoration Act

Both the House of Representatives and the Senate are considering bills this session that would redefine key terms contained in the Americans with Disabilities Act (ADA), and change the way that employers must act to comply with the law. The ADA Restoration Act of 2007 (S. 1881 and H.B. 3195) aims to redefine the term "disability" in the ADA to eliminate the requirement of "substantial limitation" of a major life activity. Under the proposed amendment, an ADA-qualifying "disability" would simply be a "mental or physical impairment." This would mean that any impairment, regardless of how temporary, intermittent, or minor would be covered--including health conditions not previously covered, such as the flu.

The ADA Restoration Act would prevent consideration of mitigating measures in determining disability, and would switch the burden of proving "qualification" to the employer--requiring employers to prove the negative (i.e., that an employee is not qualified for the job). Finally, says Aitken the proposed changes to the ADA would impact not just hiring, but all terms and conditions of employment, including healthcare plans.