Policy Matters Newsletter - April 15, 2022

COVID-19 Relief? It has been a nice respite not touching on COVID-19 recently in this space. But COVID-19 will likely remain an issue employers must front for the foreseeable future. To that end, on April 07, the House of Representatives passed H.R. 3807, or the Restaurant Revitalization Fund Replenishment Act of 2021, by a vote of 223-203. The measure would allocate $42 billion to replenish the Restaurant Revitalization Fund and $13 billion to establish a new program for small businesses that lost revenue during the COVID-19 pandemic. The additional funds will go to the Small Business Administration with marching orders to assist restaurants and small businesses that didn’t receive relief from previous COVID-19 aid packages.

At the same time, Senate Majority Leader Chuck Schumer (D-N.Y.) and Senator Mitt Romney (R-Utah) announced a bipartisan agreement that would appropriate $10 Billion in supplemental funding through amendments to H.R. 4373 “to prevent, prepare for, and respond to coronavirus, including for necessary expenses with respect to the research and development, manufacturing, production, purchase, and distribution of vaccines, therapeutics, diagnostics, and medical products, services, and supplies.” The appropriation is less than the amount requested by the administration, and does not include any provision for global vaccination efforts. This piecemeal legislative approach to additional pandemic funding was necessary after a $15.6 billion aid proposal was stripped from the fiscal 2022 spending omnibus (Public Law 117-103) because of bi-partisan opposition to the reprograming of funds previously appropriated for State and local government assistance.

NLRB GC Will Seek To Ask The Board To Abolish Mandatory Captive-Audience Meetings And Re-Establish The Joy Silk Standard. On April 7, 2022, NLRB General Counsel Abruzzo issued a memorandum to all NLRB field offices indicating that she will ask the Board to reconsider its current precedent permitting employers to require attendance at so-called “captive audience meetings,” which typically occur during work time and are intended for employers to present their opinions on unionization.  On April 11, 2022, GC Abruzzo’s office also filed a brief which asks the Board to overturn precedent and return to what is referred to as the Joy Silk standard. Under Joy Silk, employers had to have a good faith doubt regarding majority support for the union to refuse a demand for recognition and move to an NLRB conducted secret ballot election. If, after refusing a demand for recognition, the employer could not establish a good-faith doubt for its denial of the union’s majority status, or committed any unfair labor practices that demonstrated the employer’s “rejection of the collective bargaining principal or . . . desire to gain time within which to undermine the union,” the employer was required to bargain with the union. But Joy Silk, often viewed as a subterfuge for card check recognition, has not been the law for over 50 years. GC Abruzzo will likely include language in subsequent briefs seeking to outlaw captive audience meetings and to return to the Joy Silk standard. Whether the Biden NLRB will be receptive to the GC’s requests is hard to say, but employers should buckle up, because this could be an extremely bumpy ride. Please reach out to the authors with any additional questions.

The Long David Weil Confirmation Saga Is Officially Over. As Seyfarth summarized here,  On March 30, 2022, the Senate voted down a cloture motion to advance the nomination of Dr. David Weil to return as U.S. DOL Wage and Hour Division (“WHD”) Administrator, a position he held during the Obama administration, much to the consternation of the employer community. Dr. Weil’s nomination was subsequently withdrawn, leaving the administration back at the drawing board. The business community rallied hard to defeat the nomination, convincing Democratic Senators Manchin, Sinema, and Kelly to defect from the rest of their caucus. The employer community’s consternation over Dr. Weil is presumably due to his consistent and outspoken critiques of the gig economy, an industry in which he believes most workers should be viewed as employees, and all the obligations that follow that designation, rather than classified as independent contractors. Dr. Weil also advocated a sharp departure from current standards to determine worker FLSA classifications and an increase in minimum wage and overtime requirements. His previous tenure saw a sharp shift to proactive enforcement — after his arrival in 2015, nearly half of wage and hour division investigations were targeted rather than complaint-based, a 27-point increase from FY2010 as Seyfarth noted at the time.

Maryland Legislature Overrides Veto Become 10th State To Enact Paid Family Leave.  Doing what the federal government has been unable to do, the Maryland State Legislature overrode Governor Larry Hogan’s veto of its paid family leave bill, as Seyfarth recently reported. The legislation passed the Senate by a 30-16 vote and the House by a 94-44 vote. The Maryland Time to Care Act, as it is called, will make paid leave available to eligible employees for family leave, medical leave, and family military leave reasons beginning on January 1, 2025.  Beginning on October 1, 2023, employees, employers, and self-employed individuals must begin making contributions to the Family and Medical Leave Insurance Fund, which the Time to Care Act establishes. Maryland will become the tenth state to enact a mandatory paid family or paid family and medical leave program.

Washington State Employment Laws Tracking California.  A Seyfarth summarized here, and we noted here, last year, the California Legislature passed SB 331, which extended California’s prohibition on confidentiality provisions in settlement agreements to all forms of workplace discrimination—not just discrimination based on sex, as was previously the case.  Well, a couple of weeks ago, as Seyfarth summarized here, Washington Governor Jay Inslee signed into law similar legislation. HB 1795 — heck, even the name, the “Silenced No More Act,” is a carbon copy of SB 331 — which renders illegal nondisclosure and nondisparagement provisions in employment agreements. Prohibited provisions cover any conduct that an employee reasonably believes under Washington state, federal, or common law to be illegal discrimination, harassment, retaliation, a wage-and-hour-violation, sexual assault, or conduct that is recognized as against a clear mandate of public policy. Similar to a requirement in California, Governor Inslee also recently signed SB 5761, summarized by Seyfarth here, which implements new salary posting and disclosure requirements in the State of Washington.

The measures described above — SB 331, SB 5761, HB 1795, and even H.R. 4445 on the federal front, which Seyfarth summarized here — are examples of the current legislative trend toward ensuring transparency in the employer-employee relationship, sometimes to the detriment of profitable business practices. Stay tuned as more legislation with the same aim is likely to prop up in statehouses across the Country.  

With A Soon To Be Blue Majority, The EEOC Will Step Up Its Enforcement Game.  On April 1, President Biden announced that he will nominate Kalpana Kotagal to serve as an EEOC commissioner, which, if she is confirmed, will give the EEOC a Democratic majority by the end of the year. Kotagal, a plaintiff-side class action attorney, would replace Republican commissioner Janet Dhillon when her term expires in July. Seyfarth also recently reported on the EEOC’s release of its fiscal year 2023 budget justification and fiscal year 2021 performance report, both of which contain must-read data points for employers regarding the EEOC’s future strategic objectives and potential targets of heightened enforcement activity. With a Democratic majority, the EEOC is expected to focus on sexual harassment, LGBTQ discrimination, and employee wellness programs, among other issues. Stay tuned for updates on the nomination and potential confirmation of Kalpana Kotagal.

Immigration Policy Is Always Controversial, But Even More So In A Pandemic. In the early days of the pandemic, former President Trump resurrected a public health authority known as Title 42. This authority authorizes U.S. border officials "to prohibit, in whole or in part, the introduction of persons and property" to stop a contagious disease, like COVID-19, from spreading in the U.S. President Joe Biden continued the policy but now plans to lift it on May 23.  Rochelle Walensky, head of the CDC, wrote that “[f]ollowing an assessment of the current epidemiologic status of the COVID-19 pandemic and the U.S. government’s ongoing response efforts, I find there is no longer a public health justification for” continuing to screen migrant at the border under the auspices of Title 42. Concerns abound that the policy change will cause an expected and unmanageable migrant surge at the border. Stay tuned.

In other immigration news, as Seyfarth summarized here, USCIS has announced three new initiatives to reduce processing delays and backlogs caused in part by the pandemic: (1) establishing processing time goals for petitions and applications; (2) expanding premium processing options for certain I-140 petitions and for certain  I-539 and I-765 applications; and, (3) developing a temporary final rule to automatically extend certain employment authorization documents. This trio of efforts is aimed at increasing  “efficiency and reduce burdens to the overall legal immigration system,” is an overall theme of the Biden administration