Policy Matters Newsletter - August 12, 2022

Inflation Reduction Act Of 2022. After the so-called “vote-a-rama,” that lasted all night and into the morning last Saturday / Sunday, the Senate finally voted to pass the Act through reconciliation, by a 51-50 vote margin with only democratic “aye” votes. Official passage of the measure in the Senate occurred after it was slimmed down more than once through amendment. The measure now goes back to the House, where it will almost assuredly pass, likely today, and head to the President’s desk.

The measure’s legislative journey, especially in the Senate, to the end product is fascinating, and we will likely touch on the politics that led to this and what that may portend for future legislation, but for now, let’s get into the meat of this transformative legislation:

• Appropriates $369 billion in Energy Security and Climate Change programs (much of these appropriation are tied to certain labor markers);
• Appropriates $64 billion to extend ACA subsidies through 2024;
• Appropriates $78.9 billion to the IRS to increase enforcement;
• Allows Medicare to negotiate drug prices and caps out-of-pocket costs to $2,000;
• Establishes a 15% minimum alternative tax on corporations that report an average of at least $1 billion in income over three years; and
• Imposes a new 1% excise tax on stock buybacks

Immediately prior to passing the bill, the Senate adopted two amendments that (1) exempt businesses owned by private equity from the new corporate minimum tax and extends existing limits on how certain businesses can write off their losses for another two years (State and Local Tax deductions); and (2) replaced previous language that would have eliminated the carried interest exemption and replaced it with a new 1% excise tax on stock buybacks.

Notably, much of the funding for clean energy tax credits are structured in tiers, with greater credit being offered if prevailing wages are paid and apprenticeship requirements are met. As expected, pro-union groups have praised the labor-focused tax incentives while the business lobby firmly opposes the same.

While here discussing this legislation approaching the President’s desk, we would be remiss if we did not also mention the recent signing of the CHIPS Act and the PACT Act (both of which entailed their own political intrigue). It has been quite the month for this administration. The former invests more than $200 billion over the next five years into semiconductor chip manufacturing. The latter makes it easier for veterans exposed to burn pits to gain access to health care and disability payments.

Website Accessibility And The ADA. Website accessibility and its relation to the ADA Title III has been a salient topic for quite some time now. Interestingly, though, as Seyfarth noted here, while Title III accessibility lawsuits exploded in 2021, 2022 saw a precipitous drop in the number of similar lawsuits filed. 

One of the most salient issues within the accessibility space is accessibility of websites for folks with disabilities, especially as it relates to disability of the eyes. Recently, however, as Seyfarth’s Title III team summarized here, the California Court of Appeals in Martinez v, Cot’n Wash, Inc, in concurrence with the 9^thCircuit, recently held that lawsuits brought against online only businesses are subject to dismissal because those websites are not “public accommodations” covered by Title III of the ADA. As such, creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act in California (a violation of Title III of the ADA is considered a violation of the Unruh Actin California).

Speaking of accessibility and the ADA, the Department of Health and Human Services along with the Department of Justice recently issued Guidance for telehealth accessibility, which Seyfarth summarized here. The Guidance also provides specific examples of actions that health care providers may need to take to ensure that health care offered via telehealth is accessible, as well as resources for providers and patients about telehealth and civil rights protection.

On August 16, 2022 Seyfarth will host a webinar entitled: “ADA Title III Disability Access: Hot Issues and Litigation Trends in the Food and Beverage Industry.” Those interested in attending can register here.

Florida’s Ban On Corporate “Wokeness” And Certain Instruction In Public Classrooms. Gov. Ron DeSantis has signed legislation aimed what the Governor calls “corporate wokeness.” The so-called Stop the Wrongs to Our Kids and Employees (WOKE) Act bans the teaching of critical race theory (CRT) in K-12 schools and bans certain corporate diversity and inclusion training. Specifically, the measure provides that any training that endorses certain concepts related to racism, sexism, privilege, and merit-based advancement constitutes discrimination based on race, color, sex, or national origin,” The Florida Government created a “handout” summarizing the provisions of the STOP WOKE Act

Around the same time, Gov. DeSantis signed what opponents have labeled as the “Don’t Say Gay Bill,” or the “Parental Rights in Education Act,” as defined by the Florida Legislature. The new law provides that “[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.” The measure also empowers parents to sue the school district over teachings they don’t like, and the district will be on the hook to pay for it.

Both acts are currently facing constitutional challenges in Federal Court in Florida. Stay tuned!

New EEOC Nomination Portends More Policy News. During the tail end of the Donald Trump administration and the onset of the pandemic, this space mentioned the EEOC often. As of late, however, news from the Agency has come at more of a drip pace. Well, this Spring, President Biden nominated Kalpana Kotagal to be the next commissioner of the EEOC, whose confirmation would likely spell additional policies promulgated by the agency. Kotagal is a partner at the law firm of Cohen Milstein, part of the firm’s Civil Rights & Employment practice group, and Chair of the firm’s Hiring and Diversity Committee. In her practice, she specializes in employment law generally, and issues related to Title VII, the Equal Pay Act, the Americans with Disabilities Act, and Family Medical Leave Act, specifically. Her confirmation to the Agency would constitute a sea change from Republican control of the commission to Democratic control. Conservative groups are lobbying Senators Joe Manchin and Kyrsten Sinema to vote against her nomination. Whether those efforts will accomplish that goal is yet to be seen — stay tuned.

This Time, NLRB Signs Information Sharing With DOJ. As we noted in the last iteration of this newsletter, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) joined in a Memorandum of Understanding (MOU) outlining expectations intended to enhance coordination “[t]o better root out practices that harm workers in the ‘gig economy’ and other labor markets.” The NLRB is also reaching agreements with other federal agencies. This time, NLRB General Counsel Jennifer A. Abruzzo and the Justice Department (DOJ)’s Antitrust Division Assistant Attorney General Jonathan Kanter signed a new MOU creating a formal partnership between the two agencies to better protect free and fair labor markets and ensure that workers can freely exercise their rights under the National Labor Relations Act. According to the NLRB, “[t]hrough greater coordination in information sharing, enforcement activity and training, the Agencies will maximize the enforcement of federal laws, including the National Labor Relations Act (NLRA), under the NLRB’s jurisdiction and the antitrust laws enforced by the DOJ.” Employers in the gig economy should be wary!

Speaking Of Gig Workers: Legislation Would Create New Hybrid Classification. Recently, Representatives Elise Stefanik (R-NY), Henry Cuellar (D-TX), and Michelle Steel (R-CA) introduced the Worker Flexibility and Choice Act (WFCA). The legislation establishes a new work arrangement intended to combine the flexibility of independent work with certain workplace protections and opportunity for additional benefits. The measure would permit workers to enter into voluntary “worker flexibility agreements,” which purports to permit the worker to maintain independence while also permitting the employer to offer benefits to the independent contractor without running afoul of the Fair Labor Standards Act (FLSA). Rep. Cuellar has released a helpful fact sheet summarizing the provision of the measure. For example, the measure would preempt state and local wage/hour and tax laws that would otherwise force the individual to be treated as an employee, and all of the obligations that come with that classification. The measure has been introduced and referred to the House Education and Labor Committee and the House Ways and Means Committee. No further action has been taken on the measure. Stay tuned.