Immigration reform resurfaces

The decision by House Speaker John A. Boehner (R-Ohio) to add a high-profile immigration expert, Rebecca Tallent, to his staff is being read by immigration advocates as a sign that the Speaker is now willing to take action on the issue. Tallent is a former staffer for Senator John McCain (R-Arizona) and former Representative James Kolbe (R-Arizona), both advocates of amnesty for illegal immigrants. Boehner faces stiff pressure from House Republicans opposed to amnesty and the comprehensive bill passed by the Senate, who prefer to address only border security.

Immigration rights activists have warned Republicans that they must take action or face a political backlash, particularly in the 2016 presidential election. While Boehner initially stated that he wouldn't enter into negotiations on the bill passed by the Senate, both Democratic leaders and President Barack Obama have indicated they are willing to compromise and consider dividing immigration reform into separate bills. It's unclear, however, whether all of the bills would have to pass at the same time or whether Republicans could get border security legislation addressed first.

Tallent is leaving a job as immigration policy director for the Bipartisan Policy Center. A native of Tucson, Arizona, she is expected to bring to her new job a comprehensive understanding of border security issues and the complexity of immigration reform.

Immigration reform efforts also seem bolstered by the recent budget compromise, during which Boehner signaled a major break from right-wing conservatives, accusing them of losing "all credibility" by opposing his efforts to reach a deal with Democrats over the federal budget. Heritage Action, a group supportive of Tea Party Republicans, issued a response to the budget deal in which it claimed Boehner was trying to clear the way for immigration reform next year by severing his links with opponents on the right of the party.

The White House also signaled a new willingness to negotiate with Boehner on immigration reform after the holidays. Miguel Rodriguez, the director of legislative affairs, who led Obama's efforts to get immigration reform through the Senate, became the first senior White House official to lose his job this year when congressional veteran Katie Beirne Fallon replaced him. The White House considers Fallon's appointment recognition of the need to improve relations with lawmakers after bruising battles over health care and the budget.

Finally, House Democrats are also signaling compromise on the issue of full citizenship, or "amnesty," as Republicans refer to it. Representative Luis Gutiérrez (D-Illinois), a key advocate of reform in the House, has indicated that Democrats may be prepared to drop their commitment to a path toward full citizenship for undocumented immigrants, settling instead for basic legal status, in an effort to see action taken by the House.

Congress holds hearings on OFCCP's new disability requirements

The House Workforce Protections Subcommittee recently held hearings on the Office of Federal Contract Compliance Programs' (OFCCP) new affirmative action rule governing the hiring of persons with disabilities under Section 503 of the Rehabilitation Act of 1973. The HR Policy Association testified in regard to its particular area of concern about the new rule, which requires federal contractors to question job applicants about their disability status. Most employers believe that in addition to contradicting a specific prohibition in the Americans with Disabilities Act (ADA), the rule is an inappropriate invasion of applicants' and employees' privacy.

David Fortney, editor of Federal Employment Law Insider, testified on behalf of the association, stating that although there are a number of improvements in the final rule that lessen the burdens and costs compared to what was proposed in December 2011, HR Policy and its members remain very concerned about the impact of the rule on workplace culture and efforts to integrate people with disabilities into the workforce. The two most problematic aspects of the new rule are the requirement that contractors establish a "goal" of having seven percent of every job group filled by individuals with disabilities and that they ask job applicants as well as existing employees to "self- identify" as having a disability, even though the ADA prohibits such an inquiry.

The rule would apply to a federal contractor's entire workforce, not just those working under federal contracts, and one-fifth of the American workforce would be covered by it. Failure to meet the seven percent "goal" would result in stepped-up auditing and enforcement actions by the OFCCP. Depending on how aggressive the agency is in its enforcement actions, federal contractors may have to treat the "goal" as a quota, even though the federal courts have repeatedly ruled that such quotas would result in unlawful discrimination against people outside the targeted group.

In addition to the legal conflict with the "self-identify" provision, Fortney explained the broader concern employers have about it: "Employers try to abstain from asking invasive questions that many individuals feel are an infringement on their privacy, both during the interview process and during the term of the employee's employment. Moreover, the employer wants to ensure, for both legal and ethical reasons, that it is clear to applicants that they are being considered entirely on the basis of their ability to perform the job, not on whether they have a disability, while recognizing that if the individual, who, once hired, happens to have a disability, a reasonable accommodation may be required."

Fortney closed by stating: "We want to emphasize once again that the Association's members share the goal of increasing the employment of individuals with disabilities. . . . What we object to is if the Agency continues to impose a 'one size fits all' approach . . . that ignores the realities of the workplace and fails to recognize the barriers to employment that are well beyond the control and purview of any federal contractor."