Seyfarth Policy Matters Newsletter - February 13, 2020

All the President’s Budget. As you know, the Trump Administration’s FY2021 budget was submitted to the Congress this week. While effectively only a blueprint for future negotiations with Congress--particularly since it is the House which originates spending bills--there are some noteworthy nuggets buried in there. Perhaps not surprisingly, there is little good news on the immigration front. The DOL budget includes a legislative proposal to double the American Competitiveness and Workforce Improvement Act fees for the H-1B program to $3000 per worker for large employers, and $1500 for small employers. The increases would fund training for American workers. DOL’s budget also proposes authorizing legislation to establish and retain fees to cover the costs of operating foreign labor certification programs, including H-2A, H-2B, PERM, CW-1 and Prevailing Wage Determinations. These fees “would discourage employers from abusing the system, ensuring that American workers are not disadvantaged, and place the responsibility of paying for the program solely on the entities that utilize the program.” The DHS budget proposes to increase by 35% all penalty amounts against employers who violate provisions governing the unlawful employment of aliens, and would impose a 10% surcharge on all requests received by USCIS, including applications for citizenship, adjustments of status, and petitions for temporary workers. The DHS budget also notes: “In addition to aggressively pursuing the resources necessary to support border security and immigration control, the Administration is calling upon the Congress to enact immigration reforms, including ending chain migration, ending the visa lottery program, and moving from low-skilled migration to a merit-based immigration system. These needed reforms will increase wages of US workers, shrink the deficit, and raise living standards for both US-born and  immigrant workers.”  

On the labor side, the Administration proposed to cut DOL's budget by 11%, the NLRB’s 10%, and the EEOC’s 7%. There were no radical slashes proposed in the sub-agency budgets; on the contrary, OLMS (enforcing the LMRDA principally against unions) received a proposed bump of about $7 million and the Solicitor's office about $6 million “to support client agencies.” Given its inclusion in the President’s State of the Union address, it's worth highlighting that the budget mentions in several places a new program to provide six weeks of paid parental leave to new parents--including adoptive parents--“so all families can afford to take time to recover from childbirth and bond with a new child.” The details tell us that this proposed program will be funded out of the Unemployment Insurance system, will not be a free-standing new program, and appears similar to the so-called ”Baby UI” program of the past in which grants were provided to the states to help fund this type of leave through the UI system. Concerns over whether such a program would undermine the UI program funding structure were raised in the past. This issue has a long history, so stay tuned on the details. Finally, the budget proposes significant premium increases for multiemployer plans to raise approximately $26 billion dollars over a 10-year budget window. The budget makes clear the view that the multiemployer system is in a state of crisis and Congress needs to act. 

EEOC Component 2: The End of a Saga? On February 10, U.S. District Judge Chutkan granted OMB’s motion to close the EEO-1 Component 2 data collection tool. EEOC has proposed, but not finally decided, whether Component 2 should be discontinued, so the door is not closed, but it appears safe to predict that Component 2 is headed to the dustbin of history--at least until another Administration takes over! As noted in the past, Seyfarth has been extremely involved in efforts to repeal Component 2 going back to the initial appeal to OMB to remand the last Administration's paperwork approval of the requirement, through lengthy amicus briefs in front of the DC district and appeal courts. See Seyfarth’s Legal Update for further background.

More Leave Hearings. Apparently not wanting to let the House Ways and Means Committee get all the action, the House Education and Labor Committee, Subcommittee on Workforce Protections, weighed in this Tuesday on the question of expanding the existing FMLA to cover more categories of leave. During the hearing, the Committee considered several bills, including one on paid leave: the FAMILY Act (H.R. 1185). The Ways and Means committee held its own hearing on the FAMILY Act back in January; this week, Seyfarth submitted an extensive statement in connection with that hearing.

Federal Judge Issues Order Curtailing Civil Cases and Imploring Congress to Fill Judicial Vacancies. On February 4, 2020, Judge Dale A. Drozd of the Fresno division in the Eastern District of California (EDCA) issued a remarkable standing order, holding that until Congress acts to fills judicial vacancies, he will follow “emergency procedures” limiting his consideration of all civil cases due to, in his words, the “ongoing judicial emergency in [EDCA].” Not only is EDCA operating under one of the heaviest caseloads in the nation, it has two vacant district judgeships Congress has yet to fill. The order itself has three main thrusts: (1) all new civil cases will proceed unassigned a District Judge, (2) all civil motions filed will be decided without oral argument, and (3) no new trial dates will be set in civil cases. Importantly, the order supersedes EDCA Local Rule 230(g), and assigns to the designated magistrate all motions for class certification and all motions seeking preliminary or final approval of collective or class action settlements. This order is only applicable to civil cases assigned to Judge Drozd;  however, this order could be the first civil domino to fall. It has been widely reported that many districts in the nation are struggling under caseloads trial judges simply cannot keep up with. Protracted delays of this nature, while not at all reflective of the judiciary’s hard work, have serious implications for employers, who may incur additional costs while waiting for rulings on all kinds of civil motions. Will Judge Drozd’s remarkable stance attract Congress’ ear--and more importantly, Members’ votes--without requiring more judges to similarly curtail access to the federal civil docket?