Seyfarth Policy Matters Newsletter - July 2020 #2

Seyfarth Shaw LLP

A Window Into Democratic Fiscal Priorities: House Reveals FY 2021 Budget Priorities.  This week, the House Committee on Appropriation unveiled Interior and Environment Appropriations Bill and the Legislative Branch, Appropriations Bill for Fiscal Year 2021. Text of the measures that make up the appropriations can be found here and here; summaries of the measures prepared by the Committee can be found here and here. Markup of those measures can be viewed here; appropriations notice of full Committee markup of both measure can be read here. Indeed, this morning, the House Appropriations Committee approved the fiscal year 2021 Legislative Branch bill on a vote of 30 to 18, sending the measure to the full floor. On Monday, the Committee also released the draft Fiscal Year 2021 Labor, Health and Human Services, Education, and Related Agencies (LHHS) funding bill. The next day, the House Appropriations Labor-HHS-Education Subcommittee approved 9-6 a draft version of its spending bill. The LHHS bill includes important limitations on agency rulemakings, although we expect the Senate will strike most, if not all, of these provisions:   

  • The final regulations on “Joint Employer Status under the Fair Labor Standards Act” published by DOL on January 16, 2020 (p. 45, lines 11-16);
  • The proposed rule on “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemptions” published by DOL on August 15, 2019 (p. 45, lines 17-24);
  • The final rule on “The Standard for Determining Joint-Employer Status” published by the NLRB on February 26, 2020 (p. 172, lines 18-23);
  • The final rule on “Representation-Case Procedures” published by the NLRB on December 18, 2019 (p. 172, lines 24-25 and p. 173, lines 1-4); and,
  • Restructuring or realigning the NLRB until 240 days after the NLRB submits the proposed restructuring plan to Congress and the Comptroller General.”

Online Courses are a Great Option During the Pandemic, Unless you are a Foreign Student.  On Monday, US Immigration and Customs Enforcement (ICE) announced that foreigners here on student visas will not be permitted to remain in the country if they attend higher education institutions through online classes. Those students’ choices are limited to transferring to another institution that provides in-person or hybrid instruction—or to depart the country and risk future exclusion. Seyfarth issued a helpful analysis of the policy, and the attendant lawsuits against ICE, here.

Kudos for Complying with Federal and State Requirements, but Beware: Local Requirements are Often More Restrictive.  Complying with guidance upon guidance and proscription upon proscription at the federal and state level is enough of an administrative headache, but employers must also be sure to comply with the immeasurable and diverse ordinances local governments are passing at a dizzying pace, particularly in California. At the outset of the pandemic, a number of large California cities – Los Angeles, San Francisco, Oakland to name just a few – and localities passed their own paid sick leave requirements, in part, to fill in the gaps left by the FFRCA. San Francisco has also passed ordinances heightening cleaning standards and a right to reemployment for those laid off for COVID-19 reasons. Hard on the heels on that ordinance, the Sacramento City Council passed its own paid sick leave requirements along with additional safety practices and protocols as a kicker. Notably, the draft Ordinance containing those provisions also contained a right to reemployment provision, but the City Council held over debate on that issue, although it is likely to pass in the near future. 

Tri-State’s List of “Hot States” Now Incorporates Nearly 40% of United States.  New York, New Jersey and Connecticut announced on Tuesday (CuomoMurphyLamont) that they’ve added travelers from three additional states, bringing the original list of eight states included in the joint incoming Travel Advisory to 19, representing nearly 40% of the states in the Union. Delaware, Kansas, and Oklahoma were added as they have met the metrics to qualify for the Travel Advisory. Travelers from the effected states will now have to isolate for 14 days upon arriving in the three northeastern states. Just before the July 4th weekend, New York State’s health department issued FAQs concerning the travel restrictions. While most are consistent with the initial understanding of the quarantine rules, Seyfarth highlighted several noteworthy points (e.g. no paid sick leave for voluntary travelers) in a recent Legal Update.

NYC Comptroller Asks S&P 100 Companies to Disclose Federal EEO-1 Filings.  Last week, NYC Comptroller Scott Stringer sent letters to the CEOs of 67 S&P 100 companies, calling on them to match their recent declarations of solidarity with the Black Lives Matter movement and affirmations of diversity and inclusion in the workplace with proof that they indeed “walk the walk.” Generally, companies that file the EEO-1 data with the EEOC must include all employees of the company categorized by race, gender and job category. According to the Comptroller’s letter and accompanying announcement, companies were asked to provide a written commitment by August 30, 2020 to publicly disclose their EEO-1 Report effective upon its next submission to the EEOC in 2021 or risk potential consequences outlined in the letter. The push towards compulsive demographic transparency was already heating up before the George Floyd protests swept the nation in late May. For example, as we discussed in an earlier newsletter, on April 24, 2020 NYS senator Luis Sepulveda introduced S8223, which would mandate that any employer with more than 100 employees or employers who are applicants to, or beneficiaries of, grant funds or municipal contract awardees in excess of $50,000 per year provide workforce demographics and equity measurements to the state Division of Human Rights. It is worth noting here that Seyfarth long led the charge in opposition to the past – now repealed – expanded EEO-1 Form, partially on the basis that such data, without further context, is meaningless and could be misused or misinterpreted by those with certain agendas.

New Jersey Assemblyman Introduces Another COVID-19 Liability Bill.  Last week, we discussed that N.J. State Senator Vin Gopal (D) introduced Bill No. S2634, which seeks to grant legal immunity to “businesses” that reopen during the pandemic, defined broadly. This past Monday, N.J. Assemblyman Vincent Mazzeo (D) introduced Bill No. A4388, which seeks to provide similar immunity but more specifically directs its language towards “employers” rather  than companies and non-profits in general. “Employer” as defined by the bill, includes “any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons acting directly or indirectly in the interest of an employer in its relations to employees.” Bill at § 2.

It’s All Happening in the Federal Agency World.  Application of the CARES Act has caused administrative headaches for employers across the nation, particularly the tax implications of provisions of the Act permitting a tax-favored withdrawal from defined contribution plans. Thankfully, this week, the IRS issued notice 2020-50, providing guidance on that very issue, which Seyfarth analyzed in detail here.  Not to be outdone, the EEOC announced this week two new pilot programs, which Seyfarth discussed here. The first is aimed at enhancing oversight over the conciliation decisions made by EEOC personnel in the field and materially changes how the agency conciliates discrimination and harassment allegations. The second expands the EEOC’s mediation program to include additional EEOC charges and the EEOC mediation technology, paving the way for virtual mediations.  

COVID-19 Is Causing an Eruption in Employment Litigation.  In the wake of the pandemic, courts are seeing employees pressing all kinds of different claims related to COVID-19, from common law tort and contract claims, to claims for discrimination under Title VII, to claims alleging violation of the FFCRA, to your run-of-the-mill wage and hour claims. While no business sector has been immune from such claims, the healthcare, manufacturing, and retail industries have seen the greatest volume of such claims. For a comprehensive review, see Seyfarth’s in-depth analysis of the data here.

Another Voice Joins Chorus of Calls for More Federal Judges in the Eastern District of California.  As Seyfarth noted here, judges in the Eastern District of California have operated admirably under one of the most oppressive caseloads in the nation with significantly less judicial resources than most federal districts. Recently, two full-time judges assumed senior status, lowering their caseload, but compounding the emergency in the district. As such, Judge Dale A. Drozd issued a Judicial Emergency order, severely curtailing civil litigants’ access to the court. Recently, the president of the Federal Bar Association (FBA) testified in front of the Senate Committee on the Judiciary, imploring Congress to promptly exercise its authority to create additional Circuit, District, and Bankruptcy judgeships consistent with the recommendations of the Judicial Conference. In support of the request, the FBA President specifically directed the Committee to the existence of the Judicial Emergency in the Eastern District of California.

New Jersey Extends Benefits for Unemployed Workers.  Last week, the N.J. Department of Labor announced that out-of-work citizens who have exhausted their state and federal benefits – 26 weeks of unemployment plus 13 weeks of federal Pandemic Emergency Unemployment Compensation – will be eligible for an additional 20 weeks of unemployment benefits. Now, workers can qualify for a maximum of 59 weeks of benefits. Those who filed claims will be automatically enrolled into the extended benefits as their federal extension expires.

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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