Beltway Buzz, September 11, 2020

“Skinny” Coronavirus Package Blocked. Congress returned to Washington, D.C., this week following an August recess, but didn’t do much to move the ball forward on pressing issues such as coronavirus relief, postal service aid, or federal government funding beyond September 30, 2020. On September 10, 2020, Senate Democrats defeated a targeted pandemic stimulus package that included a $300 weekly unemployment premium, employer COVID-19–related liability protections, assistance for the United States Postal Service, childcare and educational support, and money to combat the virus. Though things can of course change, this likely means that there will be not be a coronavirus relief package prior to the November 2020 elections.

Regarding government funding, it seems that a continuing resolution maintaining current funding levels will be the favored legislative vehicle. Democrats will likely push for the continuing resolution to run into 2021 when a potential Biden administration would have leverage and could take a fresh look at federal spending.

Joint-Employer Rule Struck Down. On September 8, 2020, the U.S. District Court for the Southern District of New York struck down the most significant element of the U.S. Department of Labor’s joint-employer regulation under the Fair Labor Standards Act (FLSA). In deciding a legal challenge filed by a group of state attorneys general, the court ruled that the joint-employer regulation impermissibly conflicted with the statutory text of the FLSA (particularly the definitions of “employer,” “employee,” and “employ”), that the rule’s “control-based test for joint employer liability [was] unduly narrow,” and that “the Department did not adequately explain why it departed from its prior interpretations.” Because the regulation has been in effect since March 16, 2020, the ruling stirs up a sea of uncertainty for employers.

H-1B Changes Expected. On September 3, 2020, U.S. Citizenship and Immigration Services sent to the Office of Information and Regulatory Affairs its draft proposal to make significant changes to its regulations implementing the H-1B visa program. The proposed rule is expected to limit the definition of “specialty occupation” and place restrictions on the use of third-party customer sites. The current administration is determined to have the regulation finalized and in effect before a potential Biden administration, so the changes are expected to be implemented as an interim final rule, without the benefit of public comment. The rule is expected to issue in September or in early October 2020.

EEOC Clarifies Its “Pattern or Practice” Enforcement. On September 3, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an opinion letter clarifying its interpretation and enforcement of “pattern or practice” litigation under § 707(a) of Title VII of the Civil Rights Act of 1964. Over the years, the distinctions between § 707 pattern-or-practice cases and § 706 discrimination cases that the EEOC pursues on behalf of individual employees have blurred. The letter confirms that when pursuing § 707 pattern-or-practice cases, the EEOC must follow the same administrative prerequisites as when pursuing § 706 cases on behalf of individual employees, such as the requirement of an underlying charge of discrimination and engaging in conciliation.

NLRB General Counsel Issues Memo Affecting Neutrality Agreements. On September 4, 2020, National Labor Relations Board (NLRB) General Counsel Peter B. Robb issued Memorandum GC 20-13, the “Guidance Memorandum on Employer Assistance in Union Organizing.” The memorandum harmonizes two different legal standards that have been applied when an employer impermissibly assists a union in its organizing effort and when an employer impermissibly assists employees seeking to decertify a union. Pursuant to the memo, the Board is instructed to apply the same “more than ministerial aid” standard in both situations. The memo is particularly focused on neutrality agreements and instructs that their provisions “should be examined under the lens of whether they provide ‘more than ministerial support’ to the union’s efforts to organize.”

FEMA Unemployment Insurance Update. As of September 9, 2020, 48 states, as well as Guam and the District of Columbia, had been approved for Federal Emergency Management Agency (FEMA) grants under the lost wages assistance program. Nevada and South Dakota have not signed on. Some states that were early adopters are already close to the end of their sixth week of benefits.

Roberto Clemente Remembered. On September 9, 2020, Roberto Clemente Day was celebrated. Of course, Clemente’s exceptional baseball skills and selfless humanitarianism have been celebrated beyond the sport of baseball. In May 1973, President Richard Nixon approved legislation to award Clemente the Congressional Gold Medal posthumously. The legislation was cosponsored by Representative William Moorhead (D-PA) and Representative Wilmer “Vinegar Bend” Mizell (R-NC), a former professional baseball player who pitched against Clemente before becoming his teammate in Pittsburgh during the World Series championship season in 1960.

A note from the Buzz on 9/11: It seems like just yesterday that we were sitting in our 1L Property class when the news broke. Nineteen years later, we remember that horrid day and the family members of those who lost their lives.