Beltway Buzz, August 28, 2020

DOL Issues Back-to-School Leave Guidance. On August 27, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) updated its frequently asked questions regarding paid leave under the Families First Coronavirus Response Act (FFCRA) related to the reopening of schools. The questions address whether paid leave is available when:

• a child attends a school operating on an alternate-day basis [answer: because school is effectively “closed” when children cannot attend in person, employees may take paid leave on days when their children are not permitted to attend school in person];
• a parent chooses remote learning when in-person instruction is available [answer: paid leave under the FFCRA is not available because the school is not “closed” due to COVID-19–related reasons]; and
• a school begins the year with remote learning but may shift to in-person instruction if conditions change [answer: paid leave under the FFCRA is available while the child’s school remains closed, but if the school opens, the availability of leave will depend on the school’s particular operations].

DOL Issues Telework Guidance. On August 24, 2020, the WHD issued Field Assistance Bulletin 2020-5 on “[e]mployers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work.” While the current pandemic is perhaps the impetus for the bulletin, the WHD makes clear that it applies to all telework or remote work situations. Christine Bestor Townsend and Kayla A. McCann have the details.

Wolf Nominated. President Donald Trump announced this week that he would nominate U.S. Department of Homeland Security (DHS) Acting Secretary Chad Wolf to lead the agency on a permanent basis. Of course, the announcement came on the heels of a U.S. Government Accountability Office report that concluded that Wolf had been unlawfully appointed to his acting role. If the nomination is confirmed by the U.S. Senate, watch for Wolf to double down and reauthorize previously promulgated policies (e.g., regulations, memoranda, etc.) in an effort to inoculate them from legal challenge.

USCIS Cancels Furloughs. On August 25, 2020, U.S. Citizenship and Immigration Services (USCIS) canceled plans to furlough over 13,000 employees (almost 70 percent of its workforce)—a plan that was set to commence on August 30, 2020. USCIS announced that it would avert the furloughs “as a result of unprecedented spending cuts and a steady increase in daily incoming revenue and receipts.” While this is good news, USCIS predicted that the spending cuts would result in longer case processing and adjudication times. Further, the announcement stated that USCIS would only be able to continue operations through the current fiscal year, which ends on September 30, 2020.

On August 22, 2020, the U.S. House of Representatives passed by unanimous consent the Emergency Stopgap USCIS Stabilization Act (H.R. 8089), which addresses the funding issue at the agency by increasing the premium processing revenue stream. No word yet on what the Senate thinks about the bill, but perhaps the reprieve provides Congress with some time to address the funding situation.

DACA Guidance. On August 21, 2020, USCIS issued guidance implementing a memorandum from Acting Secretary Wolf in which DHS announced plans to limit the scope of the Deferred Action for Childhood Arrivals (DACA) program following the decision by the Supreme Court of the United States to block the cancelation of the program. Some of the policies set forth in the guidance include the following:

• USCIS will reject all initial DACA requests and return all associated fees “submitted by aliens who have never before received a grant of DACA.” (Italics in the original)
• Grants of DACA and employment authorization will be limited to one year, though existing two-year grants are still valid.
• USCIS will adjudicate renewal requests, but “USCIS will generally reject DACA renewal requests received more than 150 days prior to the expiration of the DACA recipient’s current DACA validity period.”

DOL Issues Final Rule on Use of Guidance Materials. Pursuant to “Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” on August 28, 2020, the DOL issued a final rule establishing its policy for issuing, modifying, withdrawing, and using guidance. The executive order and the final rule—called “Promoting Regulatory Openness through Good Guidance (PRO Good Guidance)”—respond to complaints from stakeholders regarding the use of guidance documents and similar materials to make policy instead of by formal rulemaking procedures. Accordingly, the preamble to the rule states that, unless required by law or other legal instrument (such as a grant), “guidance itself cannot impose binding requirements” and “an agency may not use noncompliance with a guidance document as itself a violation of applicable statues [sic] or regulations.” The rule also requires the DOL to “maintain a single, searchable, indexed website that contains, or links to, each agency’s guidance documents that are in effect.” (Spoiler alert: the database is here). Finally, the rule requires that guidance documents deemed “significant” go through a public notice and comment period; the rule also includes a mechanism for stakeholders to petition the DOL to withdraw or amend existing guidance materials. The rule becomes effective on September 27, 2020.

Travesty of Justice. This week marked the 74th anniversary of the death of one of the most controversial (and downright nasty) justices to serve on the Supreme Court. Justice James Clark McReynolds died alone in a hospital on August 24, 1946, and none of his fellow justices attended his funeral. This is undoubtedly because McReynolds was a blatant and notorious bigot and anti-Semite. McReynolds refused to speak with or even be in the same room as his colleague Justice Louis Brandeis, who was the first Jewish member of the Court. During one oral argument, McReynolds turned his chair around so as not to face the prominent African-American attorney Charles Hamilton Houston, who was arguing a school desegregation case before the high court in 1938.

Nominated by President Woodrow Wilson, McReynolds became a member of the “Four Horsemen”—the group of conservative justices who generally opposed New Deal legislation. McReynolds authored significant 14th Amendment decisions in Meyer v. Nebraska, 262 U.S. 390 (1923) (striking down a Nebraska law that prohibited foreign language education) and Pierce v. Society of Sisters, 268 U.S. 510 (1925) (striking down an Oregon law that required all children to attend public school) that have been cited as civil liberties precedents in the decades since.