Policy Matters Newsletter - July 2021 #2

Seyfarth Shaw LLP

The Senate, Finally, Takes A Baby Vote On The Bipartisan Infrastructure Proposal. On Wednesday, the Senate voted 67-32 to advance the proposal, with 17 Republicans joining all Democrats to begin legislative action. The vote was procedural in nature, permitting the body to debate the legislation and offer amendments only, but was not a formal vote on the measure itself. According to the White House, the package tops out at $1.2 trillion over eight years, with about $500 billion in new spending. As expected, the agreement focuses on hard infrastructure investments such as roads, railways, bridges and broadband internet, but it does not include investments Biden has referred to as "human infrastructure," including money allocated for child care and tax credits for families — that is slated to come through a reconciliation package (though Senator Sinema has already started throwing water on that proposal).

NLRB GC Abruzzo And Members Prouty And Wilcox ConfirmedOn Wednesday, the Senate confirmed union-side attorneys David Prouty and Gwynne Wilcox to the National Labor Relations Board with near-party-line votes. Member Wilcox will fill the sole open seat on the Board, while Prouty will have to wait until current Republican Member William Emanuel’s term ends on August 27, 2021 to take his seat on the Board. Once Prouty joins the Board, the Democrats will have a 3-2 majority. Earlier this month, Jennifer Abruzzo was confirmed as General Counsel of the Board by a vote of 51-50, which is the top prosecutorial position of the agency. Board watchers and employers alike expect that decisions from the Board will begin to shift in a pro-union/pro-employee direction, and that new General Counsel Abruzzo will continue pursuing pro-union/pro-employee priority cases, similar to those pursued by Acting General Counsel Peter Sung-Ohr, whom she has named her Deputy General Counsel.

It’s Not Just The NLRB Filling Leadership,. Jocelyn Samuels To Return To The EEOC. Earlier the month, the U.S. Senate voted to confirm Jocelyn Samuels, by a vote of 52-47, to serve a second term as a Commissioner at the EEOC. Samuels was originally nominated by then-President Donald Trump. She was first confirmed to serve on the commission in September, with her term slated to end in July, 2021. Samuels new term does not expire until July, 2026, and she will continue to serve as Vice Chair of the commission.

The Data Confirms Our Suspicions: OSHA Picks Up Investigations. We here at the PMN have been writing about, hosting webinars, and generally warning the employment community that increased enforcement and investigation by the DOL, and other federal agencies, are almost certain under the Biden administration. Well, the numbers are starting to bear out: Across all industries in June 2021, the Occupational Safety and Health Administration conducted 2,452 inspections, up 47% from the 1,672 inspections in June 2020. Moreover, Another 85 inspector positions were funded for fiscal 2021 by the American Rescue Plan Act, passed in March. Much of the uptick in investigations can be explained by the reduction in COVID-19 restrictions for inspectors. However, as noted below, COVID-19 restrictions in the form of mask mandates are making a comeback, so we might see similar restrictions return to OSHA. If that is the case, we may see a short plateau in the number of investigations before they tick back up. Speaking of OSHA, Nineteen of the 21 U.S. states with their own occupational safety agencies covering private and public workplaces, plus Puerto Rico, have told federal OSHA that they’ll adopt the agency’s rules for protecting most medical workers from Covid-19, leaving only Utah and South Carolina workers without that regulatory shield.

It’s Been More Than A Year Since We Saw The Great White North; Now Canada Is Permitting Its Southern Neighbors To Return. As we noted here and here, at the onset of the pandemic, Canada decided to close the border, and extended the closure last November as the pandemic continued to rage on. Well, as Seyfarth noted here, the Canadian government announced that fully vaccinated citizens currently residing in the U.S. may enter Canada for discretionary travel. However, those who have not received the jab remain precluded from visiting our neighbors to the North.

Don’t’ Call It A Comeback—Mask Mandates Swiftly Reappear. Spikes in COVID-19 cases and positivity rates are leading cities across the nation to institute or reinstitute restrictions, often in reaction to New CDC Guidelines. Among them, Los Angeles County recently implemented a Public Health Order requiring all people, regardless of their vaccination status, to wear masks in public indoor settings. The District of Columbia has also reinstituted its indoor mask mandate, effective July 31st, for all people regardless of vaccination status over the age of 2.  And other cities have taken similar steps.  For example, 3000 miles to the West, the mid-sized city and county of Sacramento, California — where this author happens to reside — is bringing back the indoor mask mandate. In addition, the federal government has instructed agencies to mandate masks inside federal buildings for all employees and visitors in areas “of substantial or high community transmission.”  But these new restrictions and mandates are of course not without controversy. Even more controversial, many private companies have instituted a vaccine mandates, and the Administration has issued similar requirement for federal workers.

After The Executive Order, Employers Wonder, Will Joe Biden Ban Noncompetes. In the last iteration of this publication, we spoke to states following California’s lead in banning noncompete agreements. In the interim, as Seyfarth noted here, President Biden issued an executive order noting that the Administrating would seek to “eliminate non-compete clauses and no-poaching agreements that hinder the ability of employees to seek higher wages, better benefits, and working conditions by changing employers.” Now, it should be noted that Joe Biden does not have the power to unilaterally ban noncompete agreements, hence the somewhat toothless EO. And such a drastic piece of legislation would certainly not pass through Congress. But, the Federal Trade Commission could issue an NPRM under its rulemaking authority to ban noncompete agreement federally. Stay tuned.

The House Passed a Seven-Bill Minibus, Including NLRB and Labor Department Funding. Yesterday, the House passed a $600 billion spending package to fund several departments of the government, including the Departments of Labor, Education, Health and Human Services, Agriculture, Transportation, the National Labor Relations Board, and more. The bill would increase the NLRB’s budget by 16% to $317 million for fiscal year 2022, and it also removes budget language blocking the NLRB from holding union elections. The Department of Labor would receive a funding increase of 17.6% to $14.7 billion in discretionary funds for fiscal year 2022, including $4.2 billion to shore up unemployment insurance. That doesn’t necessarily mean Congress is any closer to a bipartisan funding bill, however. Recent reporting predicts that Congress will likely fall back on a continuing resolution to extend current funding, which is set to expire on September 30, 2021.

Julie Su and Seema Nanda Are Finally Confirmed. What Does That Mean For The DOL? Secretary of Labor Marty Walsh has plodded for months without his leadership team in place. It took a minute, but earlier this month the Senate finally confirmed both the Deputy Secretary of Labor, and Department of Labor Solicitor. With Julie Su and her California background enforcing that State’s strict ABC test, expect the DOL under Su’s direction to prioritize enforcement of improper classification of independent contractors. Expect Seema Nanda to use her Washington contacts and vast experience navigating the bureaucracy — Nanda previously served as Solicitor during the Obama administration — to increase the velocity of change at the DOL.  Seyfarth’s own Scott Hecker, Senior Counsel in Seyfarth’s Washington D.C. office, graciously hosted this author for a great discussion on how the confirmation of these two, and others nominated to DOL leadership, will affect DOL operations.

Democrats To Press Immigration Priorities Through….Reconciliation? We here at the PMN have been following what may come in the immigration space since Joe Biden’s victory was announced. Immigration reform is a policy priority shared by both the Democrats in Congress and the employer community. And it seems the Democrats are fed up with trying to go at immigration reform through the normal legislative process. So what’s left is reconciliation. The news media is currently reporting that top democrats are planning to fold a handful of immigration measures into their forthcoming $3.5 trillion spending bill. The measures would include a path to citizenship for farmworkers already living here and “essential workers,” including health workers during the pandemic, to receive green cards under the bill. Of course, as we saw with the minimum wage hike in the American Rescue plan, the democrats strategy all rests on one unelected official — the Parliamentarian.

If Not By Air, Then By Sea. As we noted here, despite the Administration’s bests efforts, the Parliamentarian ruled that an increase in the minimum wage cannot go through reconciliation, and there is no way the GOP Senate members would vote for such a bump. So the only lever left to accomplish the goal of bumping the minimum wage is through federal agency rulemaking. Well, just this week, the DOL issued a Notice of Proposed Rulemaking, that would implement an executive order titled “Increasing the Minimum Wage for Federal Contractors.” The proposed regulations would require certain federal contractors to pay workers performing work “on or in connection with” a covered federal contract or subcontract $15 an hour at minimum. The $15 wage rate will apply to workers on four specific types of federal contracts: (1) procurement contracts for construction; (2) Service Contract Act (SCA) covered contracts; (3) a contract under which the federal government grants a right to use federal property, including land or facilities, for furnishing services; and (4) contracts related to federal property and the offering of services the general public, federal employees, and their dependents

The CDC’s Eviction Ban Remains In Effect, But Appeals Court Casts Doubt On Its Authority. Landlords pursuing an appeal of a lower court’s denial of a preliminary injunction against the CDC’s eviction ban were handed a loss by the Eleventh Circuit Court of Appeals earlier this week, which found that they were unable to show irreparable harm. The Court said that there are only two types of constitutional claims that presumably cause irreparable injury (right-of-privacy claims and certain First Amendment claims). That said, the Court in its opinion signaled “doubts” about whether the CDC had the authority to issue such a ban without directly addressing the issue, given that only the matter of the preliminary injunction was before them. And although the denial of the preliminary injunction was upheld, the landlords’ litigation against the CDC continues. Eviction bans, in general, are a swiftly moving topic. Stay tuned.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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