Seyfarth Policy Matters Newsletter - June 12, 2020

Legacy of the George Floyd Protests Start to Ripple Into the Workplace.  As the George Floyd protests sweep the nation, a sizable amount of reformative legislation is being introduced into state legislatures. While the immediate concern of politicians is squarely on their respective state’s police forces, legislation has been introduced into the NYS Senate and New Jersey Senate this week that is reflective of the protests’ effect. In New York, Democratic State Senator Tim Kennedy introduced Bill No. S8521, requiring the NYS Division of Human Rights and the Civil Service Department to collaboratively establish a training program for civil service appointees on racial equity, social justice, and implicit bias. As justification for the bill, the Sponsor Memo cites the Ohio State University Kirwan Institute for the Study of Race and Ethnicity in defining implicit bias, its insidious nature, and the necessity to educate. Parenthetically, the Institute unveiled its own implicit bias training in October 2019. While in New Jersey, Democratic State Senator Vin Gopal – the youngest member of the Senate at 35 – introduced Bill No. S2552 on Monday. The bill would mandate a minimum of two-hours of implicit bias training on a bi-annual basis. The bill defines “implicit bias” to mean an individual’s prejudice in favor of or against a person or group which manifests itself in an unconscious manner. Stay tuned to this space for updates.

OSHA Is Not Required to Issue Final Temporary Safety Rule.  As we noted here, in May, the nation’s largest labor group, the AFL-CIO, sued OSHA asking the Court to require the Agency to issue an emergency temporary standard to protect workers against COVID-19. On Thursday, the D.C. Circuit dismissed the AFL-CIO’s complaint. In its order, the Court explained that “OSHA’s decision not to issue an ETS is entitled to considerable deference.”  An emergency temporary standard has of course been brought up by Speaker Pelosi specifically several times and was included in the recently passed HEROS Act, Section 120302, as we noted here, and Seyfarth explained in more detail here. 

Rumors Afloat on a New Immigration Proclamation.  Credible sources tell us that the President is on the cusp of issuing a new presidential proclamation banning the entry of certain nonimmigrants on a temporary basis and imposing other new requirements on a variety of programs.  In the crosshairs under a temporary bar are the  H-1B, H-2B,  L-1 and J-1 categories, with the duration of the ban between 90 and 180 days. While not impacting current visa holders within the country, it is unclear what would happen to those in these visa categories who happen to be out of the country for whatever reason when / if the proclamation is issued. Wage Level One H-IB visa workers are likely going to receive particular attention, fees will be substantially increased, and rescission of the H-4 rule (which allows spouses of H1-B holders to work) long on the regulatory agenda, may be part of the package.  Expect STEM Occupational Practical Training (OPT) programs to be included. While, individually, none of these are new ideas, as a whole, they are quite ominous and have the promise to impede economic growth, despite the possibility of exceptions in certain industries deemed “essential.”  The US Chamber of Commerce on Thursday sent a letter to the President raising these and other issues. Stay tuned for future updates as this unfolds

More Useful EEOC Guidance on COVID-19.  Yesterday, the EEOC issued additional guidance on a variety of issues of concern to employers everywhere. We previously discussed similar EEOC’s guidance  here and here. The most recent round of guidance covers important topics such as permissible employee inquiries, telework, contact tracing and accommodations for the elderly. 

EEOC Holds First Remote Hearing. Yesterday, the EEOC held its first remote hearing to discuss proposed rulemaking on wellness programs. The Commission voted 2-1 to approve the proposed rulemaking addressing what level of incentives employers may lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information, without violating the Americans with Disabilities Act (ADA). The vote to approve the rulemaking means it will now to go the Office of Management and Budget for review.  If approved, the rule will be published and the public will have an opportunity to submit comments.

Remember the Pandemic? Coronavirus-Related Unemployment Programs Remain a Salient Issue.  On Tuesday, the Senate Finance Committee held a – Socially Distanced – hearing on Unemployment Insurance During COVID-19. The hearing lasted almost four hours and included as its main attraction the Honorable Eugene Scalia, Secretary of the DOL, whose testimony can be found here. The Secretary praised the surprising jobs report from May and opposed the extension of $600 a week in unemployment benefits past the program end date of July 31, 2020.  The Secretary noted that while “[u]nemployment benefits will still be needed past that date, . . . [the] circumstances that originally called for the $600 plus-up will have changed.” He also reiterated the importance of deterring fraud in the UI system. The fate of the $600 extra unemployment benefit is so far undecided. Stay tuned to this space.

More Hearings: Title I of he CARES Act.  On Wednesday, the Senate Committee on Small Business and Entrepreneurship held a hearing with testimony from Treasury Secretary Steven Mnuchin and SBA administrator Jovita Carranza.  The hearing focused on the implementation of the small business provisions in the CARES Act, including the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan (EIDL) program. The Secretary noted some of the challenges faced in the implementation of the PPP program, and what the administration has done to ameliorate the same. He also noted that the PPP has kept "tens of millions of employees connected to their jobs." Secretary Mnuchin acknowledged that he “definitely think[s] we are going to need another bipartisan legislation to put more money into the economy." The Honorable Jovita Carranza testified to the breadth of SBA loans that have been delivered and what the SBA has done to offer guidance on the PPP program.

Social Media Off Limits: NY Bill Aims to Curtail Social Media Access for Employers.  In New York last Friday, Democratic State Assemblymember Linda Rosenthal introduced Bill No. A10591, which prohibits employers from seeking, requesting or requiring access to employees' social media accounts. The justification for the bill as stated in the Sponsor Memo, worded well for those who still find themselves working from home, is that “with the increase in social media use, lines between work and home life have become increasingly blurred and employers may overstep these boundaries by attempting to monitor an employee's social media use.” The scope of the legislation covers both employees and applicants. Similar to the social media privacy laws of other states, with certain exceptions (See Bill at §4), this bill would prohibit employers from seeking, requesting or requiring an employee or applicant to provide their user name, password, or contents of their social media accounts. See Bill at §2. 

Assistance to Businesses Damaged in the Course of Demonstrations Proposed in NYS Assembly.  NYS Assembly Democrat Nader Sayegh introduced Bill No. A10620 on Wednesday that directs the NYS Empire State Development Corporation to allow small businesses, nonprofits, and landlords impacted by the demonstrations and related civil unrest involving property damage, vandalism, and theft to be eligible for loans under the New York Forward Loan Fund. The fund is a new economic recovery loan program aimed at supporting small businesses, nonprofits, and landlords as they reopen after the COVID-19 outbreak and NYS on PAUSE. Stay tuned to this space for updates.

New Jersey Senate Resolution Introduced Urging Congress to Pass PWFA.  In last week’s addition to the newsletter, PWFA Still Alive?, we noted that after a lengthy markup on January 14, 2020, the House Committee on Education and Labor approved an amended version of the Pregnant Workers Fairness Act (H.R. 2694). On Monday of this week, proof that the bill is alive and well was on display as New Jersey State Senator Linda Greenstein (D) introduced Resolution No. SR72, “respectfully urging the United States Congress to pass the ‘Pregnant Workers Fairness Act.’” In addition, the resolution notes that “27 states, including New Jersey, have laws in place requiring employers to provide reasonable accommodations to pregnant workers; the federal government should nonetheless establish a national standard to better protect pregnant women from workplace discrimination.”

All the Reopening (and not reopening) of Court Houses. Courts across the nations that shuddered their doors in light of the pandemic have begun the arduous process of re-opening their courtrooms to litigants. In California, the Judicial Council has taken steps to begin lightening restrictions imposed at the onset of the pandemic. For example, California courts’ emergency bail schedule of $0 for most misdemeanors and lower-level felonies has been rescinded; California Chief Justice Tani Cantil-Sakauye rescinded her order extending time for defendants to be arraigned; the Court ended emergency rules that currently limit evictions and judicial foreclosures. Meanwhile, on Tuesday, the Chief Judge of New York's state courts ordered judges in New York City back to the courthouses starting Wednesday as part of a first phase of reopening, which will entail both live and remote hearings. On Friday, June 5, at 5 p.m., the Maryland courts entered into Phase 2 of its progressive phased reopening plan, which permits limited in-person hearings. While many courts seek a return to normalcy, United States District Court for the Southern District of New York has scheduled what appears to be the first remote trial, to be held in the beginning of July.  The U.S. Courts COVID-19 Task Force recently issued helpful guidance on conducting jury trials during the pandemic.

 

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The Policy Matters newsletter is a publication of Seyfarth's Government Relations & Policy Practice and is authored by Randy Johnson and Scott Mallery. Randy Johnson is a Partner in Seyfarth's Washington, DC office and chairs the firm's Government Relations & Policy Practice Group (GRPG); Scott Mallery is Counsel in Seyfarth's Sacramento, CA office.