Despite A Series Of Disappointments, Stimulus Negotiations Remain In The News. As readers of the newsletter are well aware, this specific topic has consumed an inordinate amount of white space.  Here we are again, with the negotiating stakeholders expressing optimism despite the difficulty in front of them. Recently, the Senate introduced a new “skinny” bill, supported by the White House, to provide stimulus related to COVID-19 — but that effort was quickly nixed by Senate Democrats.  Earlier last week, Speaker Pelosi announced that the House would remain in session if a coronavirus relief deal is made. Then, multiple sources reported that Congress will enter the weekend without any significant progress made on any kind of stimulus deal. There have also been reports that the more moderate members of the House are pushing the Speaker to accept a lower overall dollar amount from the other side to get some kind of stimulus through in advance of the election. At the same time, the President tweeted that Republicans should up the spending number to negotiate a deal with Democrats prior to the election, an idea Republicans balked at.  However, at least according to Senator Mike Braun (R-Ind), “not much is going to happen between now and the election.”  At this point, a gulf now exists not only between Democrats and Republicans, but also, on the one hand, between Moderate and Progressive Democrats in the House, and on the other, between the Senate GOP and the White House. The stories linked here constitute on a fraction of what has been written on the state of the negotiation. Our suggestion: don’t get your hopes up.

Push for Corporate Diversity Disclosure Heats Up as State Street and California Legislature Weigh In. In July, we at PMN reported on the NYC Comptroller’s issuance of letters to the CEOs of 67 S&P 100 companies, calling on them to match their declarations of solidarity with the Black Lives Matter movement and affirmations of diversity and inclusion in the workplace with disclosure of their EEO-1 Reports. The pressure to publish is now coming from a source much closer to the corporate heart — State Street Global Advisors, the world's third largest asset manager, recently sent letters to board chairs of public companies in its investment portfolio, noting its heightened expectations regarding board and workforce diversity. The form letter requests that companies disclose diversity data to shareholders, including metrics; and like the NYC Comptroller’s request, State Street suggested the EEO-1 Report as a framework. State Street also added that it is prepared to use its proxy voting authority at annual meetings “to hold companies accountable.” Back on the state legislative side of things, on August 30, the California State Legislature passed SB 973, which would essentially require private employers with 100 or more employees that are already required to file an EEO-1 report, to submit a “pay data report” to the California Department of Fair Employment and Housing. The bill is awaiting Governor Gavin Newsom’s signature. On the other side of the country, similar bills in the NYS legislature (S8223 and A10431) introduced earlier this year are laying idle in committee. It is worth noting 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.

Speaking Of Additional Stimulus, Where Do The President’s Executive Actions Stand? As we at PMM noted here, after stimulus negotiations failed in August, the President issued one executive order and three memoranda intended as a sort of stopgap until additional legislation is passed. Those executive actions included: (1) Student Loan Forbearance; (2) Payroll Tax Deferral; (3) Enhanced Unemployment Benefits; and (4) Assistance to Renters and Homeowners.

  1. Student Loan Forbearance: This executive memorandum, the least controversial of the four, extended the CARES Act requirement that the Department of Education hold all student loan obligations, including accrued interest, into forbearance. The dearth of reporting on this executive action is emblematic of the rare support behind this executive action.
  2. Payroll Tax Deferral. As were here at PMN noted at the time this order went into effect, outside of the Administration, no outlet, including a number of economists, really felt a payroll tax deferral program was necessary or helpful to combat the virus and its cascading economic consequences. The way this policy has been rolled out reflects that sentiment. Indeed, the US House of Representatives has declined to participate in the program, stating that participation “would not be in the best interests of the House or [its] employees.” Shortly thereafter, the GOP-led Senate did the same. The business community has also overwhelmingly chosen to opt out of the program.
  3. Enhanced Unemployment Benefits: This order redirected previously appropriated funds from general disaster relief to provide unemployment benefits in the form of an up to $300-per-week unemployment compensation supplement, to be provided for so long as the Disaster Relief Fund contains at least $25 billion in funds or until December 6, 2020. Seyfarth published an excellent summary on where states stand on wage assistance (“LWA”) a month after the order issued.  As of September 09, every state apart from South Dakota applied for the LWA. It only took one month, but numerous outlets have reported that LWA funding is rapidly dwindling, which has its own cascading economic consequences. The following states have already reported the end of the additional $300 compensation: Texas, Utah, Iowa, Arizona, Montana, and Tennessee.
  4. Assistance to Renters and Homeowners: This order directed the Department of Health and Human Services and the Centers for Disease Control to “consider whether any measures temporarily halting residential evictions are necessary to halt the spread of COVID-19.” Given the original order’s lack of real teeth, on September 04, 2020, the Centers for Disease Control and Prevention and the Department of Health and Human Services issued an order providing that a landlord “shall not evict any covered person from any residential property in any jurisdiction to which this Order applies,” through December 31, 2020. This was welcome news for large swaths of the Country desperate for such relief. The unintended consequence of the order, however, have placed landlords themselves in quite a tight bind.

House Passes Pregnant Workers Fairness Act With Some Bipartisan Support; Fate in Senate Remains Unclear. The Pregnant Workers Fairness Act, H.R. 2694  represents a unique instance of across-the-aisle legislative action, both on the part of the House of Representatives and between employer and advocacy groups to reach agreement on legislation which clarifies for the first time obligations to accommodate pregnant employees and applicants as well conditions emanating from pregnancy. With over 30 Republican members supporting the legislation and many others expressing support — but for the question raised as to whether the legislation requires coverage of abortion — the legislation, which is the product of discussions between employer groups led by the Chamber of Commerce, and women’s advocacy groups, has garnered the support of over 250 groups representing both employer and advocacy groups.  However, questions suggesting that the legislation somehow supports or requires employer support or coverage of abortion has led the majority of Republicans to demand language expressly excluding abortion from any of the requirements of the statute.  Absent an agreement and without substantial additional Republican support, it appears doubtful that the legislation will move at all in the Senate.  However, supporters have promised to attempt to convince Senators that abortion is not relevant to this legislation and that nothing in the bill supports or encourages abortion. Stay tuned to this space!

Pyrrhic Victory In Federal Court: DOL Issues Revised FFCRA Regulations Even More Favorable to Employers On The Whole. In our last issue of PMN, we noted that the Wage & Hour Division of the US Dept. of Labor (DOL) was hard at work in revising the Families First Coronavirus Response Act’s (FFCRA) implementing regulations in light of the early-August decision of Judge J. Paul Oetken of the US District Court for the Southern District of New York. Judge Oetken’s decision vacated four elements of the regulations: (1) The requirement that leave is available only if an employee has work from which to take leave; (2) the requirement that an employee may take leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider” whom an employer may exclude from being eligible for leave; and (4) the requirement that employees who take leave must provide their employers, in advance of taking leave, with certain documentation. See Seyfarth’s full analysis of the decision here. Last Friday, the DOL published the new regulations to replace the legally problematic ones and clarify some ancillary matters; the new regulations took effect on Wednesday, September 16, 2020. With respect to the four discredited elements above: (1) the DOL expanded its application of the Work Availability Requirement to apply to all paid sick time (PST), not just emergency family medical leave (EFML); (2) the DOL expanded its application of the Intermittent Leave option to apply to all PST, not just EFML; (3) the DOL narrowed the “health care provider” exclusion to equate with the definition of the same in the FMLA statute (see 29 CFR § 825.125); and (4) the DOL modified the window of time the employee has to supply the employer with documentation and notice of leave from “prior to” taking leave to “as soon as practicable.” For a more in-depth analysis of the revised regulations, see Seyfarth’s Legal Update regarding the same.

A Little More Much-Needed Breathing Room: ICE Again Extends Flexibility on I-9 Compliance. As we at PMN noted here, about a month ago, ICE announced that employers will have an additional 30-day extension to take advantage of the relaxed requirement to defer the in-person, physical inspection of new hires’ identity and employment eligibility documentation that was initially granted in March and was set to expire on September 19, 2020. Last week, ICE announced that it will again extend that flexibility for an additional 60 days, this time until  November 19, 2020. Seyfarth’s most recent immigration update can be found here.

Work or Homework: New NYS Bill Aims to Expand PFL to Include Remote Teaching. In a further effort to push the paid leave envelope in 2020, last Wednesday NYS Assemblymember Michaelle Solages (D) introduced Bill. No. A10977, which would extend NYS paid family leave eligibility to employees with children under the age of 12 or over 12 but with special learning needs or disabilities — all while their school is physically closed, but in remote session. According to the bill’s Sponsor Memo, the additional paid family leave is needed during the COVID-19 pandemic to support parents “forced to act as primary caregivers and co-teachers while working full-time without the opportunity for reduced work hours.” As of yet, the bill has no co-sponsors. Stay tuned to this space for updates!