The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
Elections in the United States are scheduled for Tuesday, November 3, 2020. Not only will the office of president of the United States be contested, but all 435 seats in the U.S. House of Representatives and 35 of the 100 seats in the U.S. Senate are up for grabs. At the state level, elections will be held for the governorships of 11 U.S. states and 2 U.S. territories.
Federal contractors and subcontractors have numerous affirmative action obligations and only so much time each day to devote to compliance. As a result, some requirements may tend to fall by the wayside as contractors focus on the more critical issues of ensuring equal employment opportunities in matters such as hiring, promotions, and pay. Even the smallest of the technical regulatory obligations, however, are important and serve a purpose—and, in fact, they can significantly enhance contractors’ affirmative action efforts by requiring regular, critical review and analysis of personnel practices.
A Pennsylvania district court delivered good news for retailers struggling to balance enforcement of their face mask policies against the rights of customers who assert that their disabilities (or other factors) excuse them from wearing masks.
On October 26, 2020, the Internal Revenue Service (IRS) updated various dollar limitations that apply to tax-qualified retirement plans for 2021. The new amounts, published in Notice 2020-79, are annually adjusted for cost of living.
On September 16, 2020, in Peeples v. Clinical Support Options, Inc., No. 3:20-cv-30144, a federal district court in Massachusetts took the unusual step of precluding an employer from discharging an employee who claimed an inability to work in the office due to a disability, and ordered the employer to allow the employee to telework for at least 60 days.
Following a review of the Modern Slavery Act 2015 (MSA) and the Home Office ‘Transparency in Supply Chains Consultation’ that closed in September 2019, the UK government is proposing a tightening of the reporting requirements placed on companies and public sector organisations under the MSA.
Since September 22, 2020, when President Donald J. Trump signed an executive order (EO) titled “Executive Order on Combating Race and Sex Stereotyping,” the Office of Federal Contractor Compliance Programs (OFCCP) rolled out several sources to provide guidance to federal contractors and subcontractors and other stakeholders on what to expect next.
Michigan Governor Gretchen Whitmer recently signed into law four bills that encourage employers to resume business in compliance with all COVID-19 safeguards required under the various federal, state, and local statutes, rules, regulations, executive orders, and agency orders. The new laws provide a significant reward for an employer’s compliance: insulation from COVID-19–related liability—including tort claims and claims under the Michigan Occupational Safety and Health Act of 1974 (MIOSHA)—as long as the employer was implementing all safeguards legally required at the time of the incident giving rise to the claim.
On September 28, 2020, Governor Gavin Newsom signed Assembly Bill (AB) 2992, which amends California Labor Code Sections 230 and 230.1 and prohibits an employer from “discharging, or discriminating or retaliating against, an employee who is a victim of crime or abuse[,] for taking time off from work to obtain or attempt to obtain relief.”
The U.S. Centers for Disease Control and Prevention (CDC) has refined its guidelines regarding what is considered a “close contact” exposure to COVID-19.
On April 3, 2020, New York State enacted a statewide paid sick leave (PSL) law impacting all private employers in New York. The law requires employers to provide up to 40 or 56 hours of annual sick leave (depending on their size and net income).
On October 6, 2020, the U.S. Centers for Disease Control and Prevention (CDC) once again revised its list of individuals whose risk factors make them more likely to develop severe illness from COVID-19.
On October 14, 2020, the Florida Fourth District Court of Appeal granted a petition for a writ of certiorari quashing a trial court’s discovery order that had compelled an employer to produce “financial worth” discovery in an employment discrimination case. While the trial court retained broad discretion over the scope of discovery, the appellate court held that the employee lacked an evidentiary basis to substantiate the need for financial worth discovery.
On October 8, 2020, the U.S. Department of Homeland Security (DHS) published its interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” which will become effective December 7, 2020. This rule brings clarity to prior U.S. Citizenship and Immigration Services (USCIS) adjudication policies that had been interpreted through two internal memoranda—Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements and Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.
At the end of 2019, President Donald Trump signed into law the Setting Every Community Up for Retirement Enhancement (SECURE) Act, which included a number of changes to employer-sponsored retirement plans. One change involved expanding the ability of long-term, part-time employees to make 401(k) deferral contributions. While this change becomes effective in 2024, employers that apply an eligibility service requirement to determine whether employees can contribute to a 401(k) plan must begin tracking hours of service for part-time employees beginning January 1, 2021.
On September 30, 2020, California Governor Gavin Newsom signed Assembly Bill (AB) 3075, which amends the California Labor Code to allow employees to collect wage and hour judgments not only from their employers, but also from certain successor businesses that take over operations when the employers have failed to pay the judgment debts.
On September 30, 2020, Governor Gavin Newsom signed Assembly Bill (AB) 1512, which amends California Labor Code Section 226.7 by authorizing employers to require certain unionized private security officers “to remain on the premises during rest periods and to remain on call, and carry and monitor a communication device, during rest periods.”
On October 8, 2020, the U.S. Department of Homeland Security (DHS) published its long-speculated interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” According to the interim final rule’s summary, the purpose of the new rule is to “strengthen the integrity of the H-1B program during the economic crisis caused by the COVID-19 public health emergency to more effectively ensure that the employment of H-1B workers will not have an adverse impact on the wages and working conditions of similarly employed U.S. workers.”
The Michigan Occupational Safety and Health Administration (MIOSHA) has issued emergency health and safety rules aimed at controlling, preventing, and mitigating the spread of COVID-19. The emergency rules, which Governor Gretchen Whitmer approved, represent a further effort to fill the void left by a recent Michigan Supreme Court decision invalidating many of the governor’s COVID-19 executive orders.
The Securities and Exchange Commission (SEC) recently announced a new human capital disclosure requirement for public companies to “reflect the many changes in our capital markets and the domestic and global economy in recent decades.” Over the past several years, human capital has become increasingly important to investors. “Human capital” generally refers to the value of a company’s workforce, which is often influenced by a company’s policies and procedures related to recruitment, retention, training, development, health and safety, diversity and inclusion, and culture. Investors see human capital as an essential component in creating long-term shareholder value and have increasingly prioritized strong human capital practices.
On 9 October 2020, the UK government announced an extension to the Job Support Scheme (JSS) for businesses that are legally required to close on account of coronavirus restrictions. This measure will sit alongside the original JSS and the Job Retention Bonus, replacing the Coronavirus Job Retention Scheme (CJRS), which will end on 31 October 2020.
As part of its Plan for Jobs 2020, the UK Government announced in July 2020 that it would pay a bonus to employers that brought furloughed employees back to work and kept such employees continuously employed until 31 January 2021. Further guidance has now been published, in addition to a Treasury Direction, which states that the Job Retention Bonus is intended to “enhance and consolidate” the purpose of the Coronavirus Job Retention Scheme (CJRS), which is to preserve the jobs of furloughed employees.
The year 2020 has certainly come with its share of new challenges. Now, with the presidential election less than a month away, heightened tensions around the country, new remote work environments, videoconferences offering a window into employees’ personal lives, face masks with political slogans, and so much more, New York employers might want to start thinking through what employee political conduct they can and can’t regulate this election season.
On September 30, 2020, Governor Gavin Newsom signed into law Senate Bill (SB) 979, a measure that will require publicly held corporations in California to achieve diversity on their boards of directors by January 2023.
In response to the COVID-19 pandemic and the need to ease lockdown restrictions, the federal government of Mexico established a bimonthly traffic-light monitoring system aligned with health protocols to guide Mexico’s states through the country's reopening plan.
As the pandemic continues, a segment of individuals who contracted COVID-19 reports that they have not experienced a quick recovery. Rather, they are continuing to suffer symptoms months after initial onset of the disease. Known as coronavirus “long-haulers,” these individuals report that they endure effects such as chronic fatigue, shortness of breath, brain fog, and other symptoms far down their road to recovery. While recuperation from a typical cold or flu lasts between 7 to 14 days, long-haulers are reportedly experiencing the consequences of COVID-19 for a far longer period and months after diagnosis.
In the wake of the Michigan Supreme Court’s ruling regarding the state’s COVID-19-related executive orders, the Michigan Department of Health and Human Services (MDHHS) has issued new orders, the Michigan Occupational Safety and Health Administration (MIOSHA) has ramped up enforcement of COVID-19-related protocols, and local counties are issuing their own orders as well.