Policy Matters Newsletter - June 3, 2022

RISE and SHINE Act. It is just a discussion draft, so need to get too excited at the prospect of more bi-partisanship (maybe this author is alone in his excitement over that potential), but recently, Chair Patty Murray and ranking member Richard Burr of the Senate HELP Committee released the so-called Retirement Improvement and Savings Enhancement to Supplement Healthy Investments for the Nest Egg Act draft bill. The measure pulls from two bills that have already passed the House by sweeping, bi-partisan margins — the Retirement Improvement and Savings Enhancement Act (H.R. 5891, “RISE Act”) and the Securing a Strong Retirement Act of 2021 (H.R. 2954, “SECURE 2.0” which we wrote about here). The proposed measure includes a wide range of policies aimed at creating additional protections for workers saving for retirement. For example, the measure would allow employers to offer emergency savings accounts and expand access to employer-provided retirement plans through multiple employer plans, and through increased access to plans for part-time workers.

OSHA Continues Rulemaking Push Despite Vaccine Setback. Before the pandemic, for most, OSHA was a little discussed, at times forgotten, yet incredibly important federal agency. But that has all changed. Especially with the 24-hour media coverage of OSHA’s so-called vaccine mandate at the beginning of this year.

While the “vaccine mandate” was a short setback, that has not deterred OSHA from rulemaking in the infectious diseases space, and other workplace safety areas of interest. For example, On May 25, 2022, Douglas Parker, Assistant Secretary for OSHA, testified — and issued a written statement — before the U.S. House Committee on Education and Labor’s Workforce Protections Subcommittee regarding his agenda for the Agency. Assistant Secretary Parker identified developing an infectious disease standard for high-risk workplaces as a priority, suggesting that had one been in place prior to the pandemic, “OSHA would have been in a better position to address COVID.” Speaking of COVID, employers should be wary as OSHA continues to pursue COVID-related enforcement. Indeed, OSHA is opening new COVID-19 programmed inspections focused on high hazard worksites. Employers should also be cognizant of the National Emphasis Program OSHA launched in April concerning indoor and outdoor heat illness, which Seyfarth summarized here.

Other areas ripe for rulemaking include: workplace violence in health care, heat hazards, and recordkeeping.

After Months Of Wild Growth, Job Numbers Finally Evening Out. According to a Bureau of Labor Statistics report that came out earlier this week, job numbers are finally starting to stabilize. The BLS reported 1.9 workers for every job, which is still historically a very high number and certainly points to a robust labor market, but it is down from recent highs. The number of layoffs and discharges fell to a record low of 1.2 million in April, demonstrating that employers are doing what they can to retain employees, mindful of the fact that rehiring for those positions down the line could be difficult and expensive. The Federal Reserve will likely be closely reviewing this report, as the number of job openings is one of the key figures it looks to in deciding how to manage the country’s economic recovery.

Maine Joins Handful Of States Requiring Payout of Accrued Vacation Upon Separation.  As Seyfarth summarized here, with the enactment of H.P. 160 - L.D. 225 or “An Act Regarding the Treatment of Vacation Time Upon the Cessation of Employment,” Maine joins a small number of states — e.g., California, Colorado — mandating the payment of unused, accrued vacation upon termination.  While the Act goes into effect on July 19, 2022, Maine employers have until January 1, 2023 to comply with the requirements of the amended Act. There is an exemption for collective bargaining agreements and the penalty for failure to comply would be the same as for other unlawfully withheld wages.

“Acting” Heads Of Important Federal Agencies Greenlit By The Federal Circuit. A back-door method for keeping temporary government agency heads in place under the 1998 Federal Vacancies Reform Act was endorsed by a ruling from the Federal Circuit Court of Appeal this week. The Federal Circuit acknowledges that its narrow application of that law, intended to limit the time period during which a temporary official can serve in a position requiring Senate confirmation, renders its scope “vanishingly small.” The Federal Vacancies Reform Act states that an official who is not prescribed to take on the role permanently can only serve for either 210 days beginning when the vacancy opens or while the nomination for a permanent official is pending.  The decision has already received criticism for undercutting the Senate’s role in making decisions on who should serve as heads of agencies and in important roles within those agencies. As a result, more litigation over the subject is expected.

SEC Continues Its Environmental, Social and Governance (ESG) Push. As Seyfarth explained here, while the SEC has typically shied away from the ESG disclosure debate, that changed this year when the SEC has announced a number of actions that include, among others: a task force to harmonize the efforts of the SEC’s Divisions and Offices, addressing shareholder rights, and creating accountability. This push continued, As Seyfarth explained here, when on May 25, 2022 the SEC announced two sets of proposed rule amendments aimed at “greenwashing” in investment funds. One set of amendments would require enhanced disclosures by investment funds claiming to have an ESG focus while another would require funds with names denoting certain characteristics to have at least eighty percent of its value in investments reflecting those characteristics. The SEC’s commentary makes clear that the rule enforcement focus will be on funds with names reflecting an ESG-principled investment strategy, such as “green” or “socially responsible.”

In separate but related ESG news, as Seyfarth summarized here, the SEC recently denied requests from two different companies to exclude from its proxy materials a shareholder’s proposal concerning ESG investment options under the company’s retirement plan. Specifically, one shareholder issued a proposal, as permitted by the SEC, noting that every investment option in the company’s retirement plan contained “major oil and gas, fossil-fired utilities," etc., or the retirement plan does not offer any equity funds that are “low carbon” and contradicted the company’s stated climate reduction commitment. The companies sought to exclude the proposal; the SEC said no. Seyfarth’s beneficially yours blog has been tracking this important issue. It is worth a read. 

Unionization Is All The Rage Right Now, And The Zeitgeist Extends To The Exotic. Following precedent currently being set by employees of certain Fortune 500 companies, Exotic performers at an topless dance club in Los Angeles recently announced that they plan to form a union. If successful, they would be the only unionized nude dance club in the country. The performers have organized under an independent labor group called Strippers United, and their primary goals are enhanced safety and health measures, enhanced job protections, and better wages. This comes in the wake of performers sending a petition to the club’s owner demanding  improved safety and health conditions and reinstatement of workers who have alleged unfair retaliation. They have also filed unfair labor practice charges with the NLRB, and safety complaints with the California Division of Occupational Safety and Health. It does not appear that a representation petition (seeking a union election) has been filed with the NLRB at this point, but the public statements by Strippers United would seem to indicate that one may be coming. Only time will tell whether this is the beginning of an industry trend or a one-off situation.