Seyfarth Policy Matters Newsletter - February 6, 2020

PRO Act Passes House. As expected, the Protecting the Right to Organize Act of 2019 (H.R. 2474) hit the House Floor this week. Today, it passed the House by voice vote (with a roll call vote expected shortly). Containing a radical wish list drawn up by the unions to facilitate union organizing in the face of dropping membership (and dues) and the inability to convince workers of the utility of joining unions, the bill appears to be a campaign vehicle to score rhetorical points; it has no future whatsoever in the Senate and the Trump Administration has issued a veto threat. From adopting the ABC test for independent contractor status (mirroring California’s AB-5), to codifying the discredited Browning-Ferris test on joint employment, to eliminating long-standing prohibitions on secondary boycotts, to gutting state right-to-work laws, to prohibiting employers from hiring striker replacements during an economic strike, to imposing a new private right of action with a Byzantine complex of new remedies of liquidated damages on top of punitive and compensatory damages (presumably with jury trials) combined with new civil penalties and personal liability for employers, to required disclosure of employees’ personal contact information to the unions for organizing, to new card check provisions and first contract interest arbitration, and on and on, the bill demonstrates the power of unions over certain Members of Congress and their ability to obfuscate the real reasons for the decline in union membership. In any event, while one can hope this vote closes a chapter on a regrettable and woefully misguided piece of legislation, and likely many Members saw this as a “free” vote given the impending demise of the bill, nothing can be taken for granted as the election draws near.

President Trump Expresses Support for Paid Family Leave. In this year’s State of the Union, President Trump urged Congress to pass the Advancing Support for Working Families Act (S. 2976; H.R. 5296), which would allow individual taxpayers the choice to advance up to $5,000 of the child tax credit in the year of birth or adoption. The bill has bipartisan co-sponsorship in both the House and Senate. That being said, we don’t project any quick action on this issue, but stay tuned.

While the House Takes Up Other Leave. The House Subcommittee on Workforce Protections announced a hearing titled “Balancing Work, Health and Family: The Case for Expanding the Family and Medical Leave Act.” Witnesses have not yet been identified, but the hearing is expected to address issues in the following bills:  H.R. 5456, Family Medical Leave Modernization Act (permit leave to care for additional family members and to attend a child’s extracurricular activities); H.R. 3631, Family Leave for Parental Involvement in Education Act (115th Cong.) (permit amended FMLA leave for school-related activities of a covered employee); H.R. 983, Sarah Grace-Farley-Kluger Act (permits leave for the death of a son or daughter); H.R. 1224, Living Donor Protection Act of 2019 (clarifying that organ donation surgery qualifies as a serious health condition under FMLA); and H.R. 1185, FAMILY Act (national paid leave insurance program).

House Committee Explores AI In Employment. The House Subcommittee on Civil Rights and Human Services this week held a hearing on civil rights and the future of work. The hearing touched on a number of key issues, including the use of algorithms in hiring, workplace surveillance and monitoring, wellness programs, and the gig economy.

Maryland Bans the Box. The Maryland General Assembly voted to override the Governor’s May 2019 veto of the Act Concerning Record Screening Practices (Ban the Box). As a result, effective immediately, Maryland employers with 15 or more full-time employees are precluded from requiring applicants to disclose their criminal record or any criminal accusations against them before a first in-person interview. For more information, see Seyfarth’s Legal Update