Policy Matters Newsletter – June 2021

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A Bipartisan Deal On Infrastructure Remains Out Of Grasp. Last week, the GOP offered a counter proposal to Joe Biden’s infrastructure plan, topping out at – so close – almost $1 Trillion. However, the GOP offer only included $200 million of new money with the rest reprogrammed COVID aid already paid. The Biden folks show no inclination to accept this. Despite the increase in the overall size of their package, the GOP proposal still deviates significantly from Joe Biden’s proposal. Specifically, the GOP proposal focuses exclusively on what it coins traditional infrastructure – roads, bridges, water, rail and airports – to the exclusion of some of Joe Biden’s other “soft” infrastructure priorities, such as child care, elder care, and installing electric vehicle charging stations throughout our vast highway system. The salient topic of climate change, which has always been tied to the use of electric vehicles, even if it remains a largely unspoken driver, undergirds the stark political lines drawn by this issue. The group of GOP negotiators was led by West Virginia Sen. Shelley Moore Capito, who met with President Biden on Wednesday. While that meeting did not yield an agreement, they did agree to meet again today. Some reports suggest that Biden may agree to a 15% floor for corporate taxes and increased IRS enforcement in lieu of an increase in the corporate tax rate to 28%. Stay tuned!

Gwynne Wilcox Nominated to NLRB. The White House has announced that President Biden will nominate union-side attorney Gwynne Wilcox for the open seat on the National Labor Relations Board. Wilcox is currently a senior partner at the law firm of Levy Ratner, and she would be the first African-American woman to serve on the Board, if confirmed. With the addition of Wilcox, the five-member Board would contain two Democrats and three Republicans. In August, Republican Member William Emanuel’s term will expire, which would give President Biden the opportunity to appoint a third Democratic member, securing a democratic majority. Wilcox’s confirmation hearing is sure to be contentious, as she has worked on many high-profile labor and employment matters, including suing McDonald’s on behalf of the Fight for $15 advocacy. She will almost certainly draw questions from Republican senators regarding when she would be willing to recuse herself from certain matters based on her career as a union-side lawyer.

Massachusetts Joins The Small Chorus Of States Requiring Paid COVID-19 Sick Leave. As we noted here, in March, California passed SB 95, requiring employers to provide full-time employees with a new allotment of up to 80 hours of supplemental paid sick leave for specified COVID-19-related reasons. This week, about 3000 miles to the East, Massachusetts Governor Charlie Baker joined California Governor Gavin Newson when he signed into law legislation that grants employees emergency paid sick leave for COVID-19-related illness, quarantine and vaccinations, which Seyfarth summarized here. This allotment of leave is in addition to earned sick leave that employers must provide under the Massachusetts Earned Sick Time Law, an existing policy or program of the employer, or pursuant to a collective bargaining agreement. The law also includes broad anti-retaliation provisions. Note that while the CARES Act requirement that employers provide paid leave has expired, the provision offering employers a tax deduction if they provide paid leave under the CARES Act criteria remains.

Obama-Era Board Rules: Don’t Call It A Come Back. Several recent dissents from current NLRB Chairman Lauren McFerran potentially signal the reinstatement of certain Obama-era rules once the Democrats have retaken the majority on the Board. In a decision involving implementation of an employee handbook in a unionized setting, the majority found that although it conflicted with certain terms of the labor agreement, the company was not required to provide the union notice and an opportunity to bargain over the handbook before distributing it. Chairman McFerran disagreed. In another recent case, the Board majority held over Chairman McFerran’s dissent that rules providing that internal investigations remain confidential are lawful, provided they are appropriately limited. In yet another, the majority found a policy prohibiting employees from recording conversations unless approved by the legal department to be lawful. Chairman McFerran found that the rule was overly broad and would restrict employees’ rights under the National Labor Relations Act. These dissents are significant because they lay out a road map for what is expected to come under the Biden Board. Employers should stay tuned and make sure that all of their policies are up to date.

Speaking Of The Obama-Era, Biden Nominates David Weil To Reprise Role at DOL. Since the Spring sprung, rumors have been rumbling that President Biden was considering nominating David Weil to reprise his role under the Obama administration as Wage and Hour Division administrator at the DOL, which is the nation’s top enforcer of minimum pay and overtime laws. Today, President Biden made the nomination official. Weil served as Administrator of the Wage and Hour Division at the DOL under President Obama from 2014 to 2017. He is currently dean and professor at The Heller School for Social Policy and Management at Brandeis University. Chairman of the House Education and Labor Committee Robert Scott praised his nomination, noting that it “signals that workers can expect the Department of Labor will have their backs at this critical moment in time.” Weil is perhaps most well-known for his support of government crackdowns on the business model of so-called gig-economy companies, and those employers’ classification of workers as independent contractor instead of employees. The nomination of David Weil is one more piece of evidence pointing toward the DOL continuing to expand on the definition of employee versus independent contractor.

(More) EEOC Guidance On Vaccinations. As we noted here, in December, much to the relief of the employer community, the EEOC released guidance providing that employers may require their workforces to receive the vaccination in order to return to the office, so long as the employer abides by its duty to provide accommodation for known disabilities and religious preferences. That guidance, in concert with the recent CDC and OSHA recommendations that fully vaccinated individuals no longer must wear masks, created an abundance of confusion among the employer community concerning how to implement and maintain such a policy on a practical level. With this confusion as the backdrop, the EEOC issued additional guidance concerning vaccinations, and employers incentives to get the same in the workplace, which Seyfarth summarized here. In a nutshell, the updated guidance confirms that employers can require that employees be vaccinated in order to physically enter the workplace and clarifies that employees who cannot get vaccinated because of disability or religious objection are responsible for notifying their employer of the need for an exemption. The Guidance also permits employers to offer incentives if employees agree to get vaccinated. This additional guidance does not answer the many questions that have cropped up in this space, but it is better than nothing.

DOL Moves To Scrap Rule On Financial Oversight Of Unions. The Department of Labor proposed rescinding a rule issued by the Trump administration that required unions with at least $250,000 in annual receipts to disclose information about their credit unions, strike funds, an apprenticeship programs, among other things, which were disclosed using the Form “T-1”. The DOL halted enforcement of the rule in March. Advocates of the rescission argue that the information on the T-1 form was duplicative of other information that is required to be filed in LM-2 reports, which are required for all unions with annual receipts exceeding $250,000, while supporters of the rule say that the enhanced information sought by the T-1 form is necessary to combat embezzlement scandals, like the one most recently involving the United Auto Workers president.

90 Day Extension of Virtual I-9s. Since the onset of the pandemic, we here at the PMN have been following the Department of Homeland Security’s (DHS) flexible policy for complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. Temporary guidance that was set to expire March 31 was extended to May 31. As Seyfarth noted here, DHS last week announced another 90-day extension for remote Form I-9 inspection, allowing flexibilities to continue through August 31, 2021. Notably, the freshest DHS guidance now exempts employees from the physical inspection requirements, even in companies that are not currently operating 100% remote, as long as the worker works exclusively in a remote setting due to COVID-19-related precautions. This exemption remains in effect until the employee undertakes non-remote employment or the extension of the flexibilities are terminated.

More California COVID-19 Requirements. As we noted here, despite the fact that COVID-19 positive rates, hospitalizations, and deaths from the same have all dropped precipitously in California – on Monday, California recorded only 598 cases down from a high of 64,897 in December – the powers that be continue to legislate additional COVID-19 requirements. While the last iteration to discuss this topic focused on measure borne from the State Legislature, here we provide a snapshot of COVID-19 requirements passed at the local level.

Most recently, the same day Santa Clara County moved into the less restrictive “yellow” tier, it issued a public health order requiring employers to determine whether their employees, contractors, and volunteers have been vaccinated; failure to ask and record the responses can carry a dizzying fine of up to $5,000 per violation per day. Around the same time, OSHA reversed course on its own guidance, establishing that employers do not need to record adverse reactions from COVID-19 vaccines on their OSHA 300 Log. These two somewhat contradictory pieces of COVID-19 restrictions highlight the difficulty employers have faced throughout this pandemic trying, with all the best of intentions, to thread the needle of often contradictory, ambiguous, and / or vague guidance and regulation. As Seyfarth summarized here, cities and counties across the state of California have also passed ordinances requiring additional pay – of up to $5 an hour in some cases – to grocery and drug store employees. The County of Los Angeles passed an Ordinance requiring both large and small employers in unincorporated parts of the County to provide supplemental COVID-19 related paid sick leave. While this space is typically reserved for federal policy matters, we note these local requirements to highlight the importance of looking beyond what is required at the federal, and even at the state level, as local requirements are not only prevalent, but are often more restrictive than obligations imposed at the state level.

Bill to Streamline Unionization For NY Gig Workers. A draft state bill in the New York State Legislature would make it easier for delivery- and ride-share workers at companies like Lyft and Instacart to unionize and collectively bargain as a group without being classified as employees. The bill is the result of extensive negotiations between gig-economy companies and New York labor unions. The bill would create two industry units – one for drivers and one for delivery couriers, and if a union submits letters of support from at least 10% of active workers in the industry, the union can become the exclusive bargaining representative of all workers in that industry without a formal vote. The bill would create a Network Worker Relations Board, a five-member panel within the New York Department of Labor. Collective bargaining agreements would have to be approved by a majority of all workers who voted, and workers would be charged union dues of 10 cents per ride or delivery. It would essentially allow for sectoral bargaining, a concept more prevalent in European countries. The bill’s lead author, State Senator Diane Savino, expects the bill to pass both houses within the next two weeks and to be signed into law shortly thereafter by Governor Cuomo.

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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