Policy Matters Newsletter - May 6, 2022

Uniting for Ukraine. While, currently, there is more than enough political news to support the 24 hours news cycle, the ongoing crises in Ukraine continues to be one of the top beats. The U.S. has been in lockstep with its NATO allies on the armed forces front, but solving the conflict’s resultant refugee and humanitarian crises are just as important. To that end, as Seyfarth summarized here, the White House recently announced a new policy to accomplish its pledge to admit 100,000 Ukrainians displaced by the ongoing war, entitled Uniting for Ukraine. Starting last Monday, entities and individuals could begin to sponsor Ukrainian citizens — each individual will require a United States-based sponsor that can attest to financial support and clear a background check. Finally, the Department of State announced an upcoming expansion of the U.S. Refugee Admissions Program (USRAP) that will consider eligible Ukrainians for refugee status under the Lautenberg program. Like any piece of policy that matters, the announcement did not come without significant pushback, mostly from refugee and immigration advocates, not as much from the GOP.

OFCCP Directive 2022-21 Rankles Employers. OFCCP Directive 2022-21 purports to provide guidance for complying with pay audit requirements found in 41 CFR 60-2.17(b)(3), and clarifies that OFCCP may access and review a federal contractor’s pay equity audit data. This directive was borne from Executive Order 11246, which focuses on equal employment opportunities in the federal contractor space by, in part, prohibiting federal contractors from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. OFCCP contends that this directive does not have the force of law, does not change the laws and/or regulations governing OFCCP’s programs, and is intended only to provide guidance to OFCCP staff and/or federal contractors on enforcement and compliance policy. Despite this stated position, employers that conduct business with the Federal Government are not very pleased. Indeed, the U.S. Chamber of Commerce recently penned a letter to OFCCP director Jenny Yang, taking the agency to task for not only the substance of the directive, but also for “authorizing this major policy change as an edict instead of as a proposal open to comment.” It is worth a read.  

Clock Ticking On Who Will Head The W&H Division At DOL After David Weil Flounder. As we noted here, the long saga over Dr. David Weil’s nomination and confirmation to return  to the U.S. DOL as Wage and Hour Division (“WHD”) Administrator ended unceremoniously with his withdrawal from consideration. The question now turns to the next person up. Jessica Looman has occupied the position as “acting” Administrator since June 21, 2021. The 210 day clock for heads of federal agencies under the Federal Vacancy Reform Act restarted upon Dr. Weil’s withdrawal. Surprisingly, there have been very little rumors regarding the next potential nominee. Perhaps that is because the Administration plans to stick with Jessica Looman as acting administrator, but recall that the Trump Administration received an inordinate amount of criticism for relying on “acting” heads in lieu of Senatorial confirmation. The President could also simply nominate Ms. Looman, but would have to find viable replacement for acting administrator. Rock, meet hard place. Stay tuned.

Good News For Employers Of Migrants. As we have discussed time and time again since the onset of the pandemic, flexibility over employers verifying employment eligibility on the form I-9 has been of paramount importance. Recently, we discussed DHS’ intention to end their COVID-19 related temporary policy allowing employers to accept expired List B documents when verifying an employee’s work eligibility on the Form I-9.  In a somewhat surprising move, perhaps buoyed by the recent spike in COVID-19 cases, DHS has somewhat reversed course, extending — for the 13th time — I-9 compliance flexibility rules for six months, set to expire on Halloween 2022. As Seyfarth noted here, the six month extension makes sense as DHS considers moving to a permanently virtual process. Specifically, a six month extension gives DHS additional time to implement its proposal to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers

AZ OSHA The Way Of The Dodo. As Seyfarth recently reported, on April 20, 2022, the DOL announced a proposal to reconsider or revoke the State of Arizona’s OSHA plan, which could lead to federal OSHA taking over regulation of private employers in Arizona. Nearly half of the states in the union operate OSHA state plan agencies that regulate private employers. Those state plans are required by federal law to adopt and enforce standards that are at least as strict as the federal standards. Where OSHA determines that a state plan is falling short in adopting or enforcing those standards, the agency may initiate proceedings to revoke approval of the state plan and reinstate federal authority over occupational safety and health issues covered by the state plan. OSHA recently announced that that Arizona has failed to adopt adequate maximum penalty levels, occupational safety and health standards, a National Emphasis Programs and – most recently – the COVID-19 Healthcare Emergency Temporary Standard. OSHA’s proposal on decertification of the Arizona plan is available for public comment until May 26, 2022, after which OSHA will announce its decision on the matter.

In other OSHA news, Vice President Harris recently announced a new OSHA emphasis program for heat illness. As Seyfarth reported, the announcement stated that the program will aim to protect “millions of workers from heat illness and injuries. Through the program, OSHA will conduct heat-related workplace inspections before workers suffer completely preventable injuries, illnesses or, even worse, fatalities.”  The program targets employers in certain “high hazard” heat illness industries based on NAICS codes, including many outdoor services industries, indoor manufacturing environments, warehousing, and nursing care facilities. There are still many open questions about the program, but employers can expect prevention of heat injuries and illness to be a major focal point going forward for OSHA under President Biden.

Washington, Like California, Is Full Of Peculiarities—The Gig Economy Is No Different. At the end of its 2022 legislative session, Washington Governor Jay Inslee signed Substitute House Bill 2076 — which passed the lower chamber 56-42 and passed the Senate by a vote of 40-8 — which could up-end the current wage structure of the “gig economy.” The bill, entitled “An Act Relating to rights and obligations of transportation network company drivers and transportation network companies,” was borne of strange stakeholders: Business, Labor (the local affiliate of the Teamsters), and progressive lawmakers. The measure maintains the independent contractor status of drivers in the state, but also offers new rights to those drivers. Those independent contractors will accrue sick pay and receive minimum pay guarantees based on the time and distance they spend on each trip. But drivers will not get the full set of benefits that come with being designated an employee, including health care and unemployment insurance.

The legislation has received an inordinate amount of public pushback, in particular and unexpectedly from Labor. AFL-CIO President Liz Shuler said that “Washington state’s model is not the template for the rest of the country to follow” — gig economy workers should benefit from a pay structure “allowing for protections for workers but not compromising the bedrock principles of worker classification.” The National Teamsters labor union’s newly appointed president Sean O’Brien also disagrees with the substance of the measure, calling for the Governor to veto the bill, even though it was the local teamsters chapter that helped draft the bill.

The battle over the Gig-Economy will now move the next State House, especially since the PRO Act has gone nowhere in Congress. Stay tuned!

DOL Releases Equity Action Plan. The DOL recently released an action plan that outlines how it plans to tackle racial and gender equity in compliance with an executive order President Biden signed on the subject last year. The plan is part of "a whole-of-government equity agenda that addresses systemic barriers," according to a DOL press release. It identified five key priority areas in which “DOL plans ambitious activity to support underserved communities,” including enforcing wage and hour laws, improving the unemployment insurance system, expanding access to the department's resources for non-English speakers, growing sector-based training and creating a more diverse pool of candidates for government apprenticeships.

Biden Firing Of NLRB GC Was Legal. The Fifth Circuit recently rejected a challenge to President Biden’s termination of former NLRB General Counsel Peter Robb, which Seyfarth previously reported on, rejecting the argument that general counsels receive the same removal protections granted to members of the NLRB. That ruling ensures that the work of Robb’s immediate successor, interim GC Peter Sung Ohr, will be protected and that cases he was involved with will not be invalidated. This decision also potentially signals a new normal at the NLRB — when there is a change in the White House, a new GC will likely follow.