Beltway Buzz, July 10, 2020

Congress Set to Work on Subsequent Pandemic Relief. Congress is out on a two-week summer recess and will return the week of July 20, 2020. Upon return, it is expected that Senate Republicans will begin legislative discussions around another COVID-19 relief package (House Democrats staked out their policy positions several weeks ago in the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act). Senate Republicans are expected to prioritize the enactment of liability protections from pandemic-related lawsuits for businesses, health care providers, schools, and universities. As both parties try to agree on some middle ground, other major topics of debate include funding to assist schools and childcare centers to open safely in the fall, another round of individual stimulus payments, and extension of the federal pandemic unemployment assistance program (though many Republicans have already expressed concern that this creates a disincentive for recipients to return to work). Legislators will only have a short window to try to get something done, too, as both the U.S. Senate and U.S. House of Representatives are scheduled to leave for recess in early August 2020.

SCOTUS on Discrimination and Religious Institutions. The Supreme Court of the United States wrapped up this week by releasing the last remaining opinions of the October 2019 term (this particular term, perhaps due to the pandemic, was one of the rare ones that extended into July). Of particular importance to the Buzz, in Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267), the Court ruled that the First Amendment prohibits certain employment discrimination claims from being brought against religious institutions. In the 7-2 ruling, the Court stated:

When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.

Ogletree Deakins represented one of the parties in St. James School v. Biel (No. 19-348), which was a companion case to Our Lady of Guadalupe School v. Morrissey-Berru.

ICE Freezes Out Nonimmigrant Students. U.S. Immigration and Customs Enforcement (ICE) announced this week that nonimmigrant students in the United States cannot pursue a fully online course load this fall and “must leave the country or take alternative steps to maintain their nonimmigrant status” if they are in such a situation. Samantha D. Wolfe and Melissa Manna have the details. Several prominent universities have already filed a legal challenge to the policy.

NLRB Update. It was a busy week for the National Labor Relations Board (NLRB), to wit:

• As anticipated, this week the NLRB issued an order seeking stakeholder input “on whether the Board should (1) rescind the contract bar doctrine, (2) retain it as it currently exists, or (3) retain the doctrine with modifications.” Briefs from the public are due by September 8, 2020.
• Late last week, NLRB General Counsel Peter B. Robb issued a memorandum on suggested manual election protocols during the pandemic. For example, the memo notes that polling times and procedures for releasing workers to vote “must be sufficient to accommodate social distancing/cleaning requirements” and that various social distancing protocols will be included in election agreements. The memo also requires employers, prior to elections, to provide various certifications regarding the cleanliness of the polling area as well as the prevalence of COVID-19, and its symptoms, at the workplace.

EEOC Announces Early Resolution Pilot Programs. On July 7, 2020, the Equal Employment Opportunity Commission (EEOC) announced that two pilot programs intended to increase voluntary resolution of workplace discrimination allegations are currently underway. First, the ACT (Access, Categories, Time) Mediation pilot “expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation.” The second program is a conciliation pilot, which “adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.” According to the EEOC, this conciliation pilot “seeks to drive greater internal accountability and improve the EEOC’s implementation of existing practices.” As the Buzz reported last week, the EEOC has also forecasted that it will be issuing a notice of proposed rulemaking regarding the conciliation process.

DOL Proposes New Fiduciary Rule. On July 7, 2020, the U.S. Department of Labor’s (DOL) Employee Benefits Security Administration released its anticipated fiduciary proposal, entitled “Improving Investment Advice for Workers & Retirees.” The proposal would allow investment advice fiduciaries to engage in principal transactions that would otherwise violate federal law. Pursuant to the proposed exemption,

Financial Institutions and Investment Professionals could receive a wide variety of payments that would otherwise violate the prohibited transaction rules, including, but not limited to, commissions, 12b-1 fees, trailing commissions, sales loads, mark-ups and mark-downs, and revenue sharing payments from investment providers or third parties.

The proposal follows on the heels of a 2016 fiduciary regulation that was vacated by a federal court in 2018. Written comments are due by August 6, 2020.

OSHA Pandemic FAQs. Late last week, the Occupational Safety and Health Administration (OSHA) released a series of frequently asked questions (FAQ) on how to keep workplaces safe during the pandemic. The specific FAQs address a variety of topics, including cleaning and disinfection, testing, personal protective equipment, restrooms and handwashing, face coverings, and workers’ rights to express concerns about workplace conditions.

Talkin ‘Bout Public Service. Supreme Court justices often announce their retirements at the end of the term. But while no justices have announced their retirement (at least just yet), the Court announced that Pamela Talkin, Marshal of the Supreme Court of the United States since 2001, will retire at the end of July 2020. Talkin has had quite the career. Prior to her current role, in which she manages security and operations of the Court, she was chief of staff of the EEOC and a member of the Federal Labor Relations Authority. Perhaps the most fascinating aspect of Talkin’s career is that as marshal, she had the distinct privilege of calling, “Oyez! Oyez! Oyez!” to call to order more than 700 sessions of the Supreme Court.