Tick Tock. The clock is ticking and the 116th Congress has three big tasks in its waning days: ensure the federal government does not shut down due to a lack of funding, pass the National Defense Authorization Act, and get an economic stimulus package on the president’s desk. With regard to government funding and economic stimulus, as of now, the plan appears to punt those items to next week (via a one-week continuing resolution) and then roll them together into one legislative vehicle (though even this strategy appears perilous, because there is no such agreement yet at the time of this writing). While this strategy buys legislators time, it isn’t as if they have been making much headway, particularly with regard to an economic stimulus bill. Indeed, the negotiations this week have resulted in almost no substantive progress from our report last week, and the status of negotiations on all three bills appears to be getting worse, not better.
- Compromise bill. There is still hope that the parties can agree on a compromise $908 billion aid package, but there is little indication that Republican leadership in the U.S. Senate is on board with the proposal. Moreover, as the clock ticks down, this compromise package has not even been distilled into legislative text.
- White House effort. There is also a proposal from the White House that totals more than the $908 billion compromise package. The White House proposal would provide one-time $600 stimulus checks in place of any extension of unemployment insurance programs.
- Liability protections. Employer liability protections from COVID-19–related lawsuits continue to remain a sticking point among congressional negotiators. This is true even in the compromise bill, which evinces some idea of temporary liability reform, though actual agreement on what that means remains an issue. Senate Majority Leader Mitch McConnell (R-KY) suggested that Republicans and Democrats drop their respective demands for liability reform and state/local aid, theorizing that abandonment of the two major sticking points could lead to a breakthrough, but Democrats rejected this offer.
- Paid leave extension? The emergency paid family and sick leave provisions of the Families First Coronavirus Response Act expire at the end of December 2020. So far, it does not appear that any extension and/or expansion of these programs is being discussed.
OFCCP Finalizes Religious Exemption Regulation. On December 9, 2020, the Office of Federal Contract Compliance Programs (OFCCP) finalized a rule to “clarify the contours of the E.O. 11246 religious exemption and the related obligations of federal contractors and subcontractors.” The rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” establishes protections for religious organizations to “hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.” Opponents of the rule argue that it opens the door for discrimination. The new regulations go into effect on January 8, 2021. Of course, this final regulation is well within the calendar window for Congressional Review Act treatment in the 117th Congress. If Democrats can muster 50 votes in the Senate—through some combination of victories in the Senate runoff elections in Georgia or peeling off a Republican or two—they could rescind the final regulation. Failing that, the incoming OFCCP will likely rescind the regulation but would have to go through the lengthy Administrative Procedure Act rulemaking process in order to do so.
EEOC Opinion Letters. On December 8, 2020, the U.S. Equal Employment Opportunity Commission announced a new process for stakeholders to request opinion letters. This is relatively new territory for the Commission, having issued its first opinion letters in 30 years earlier in 2020. Like opinion letters issued by the U.S. Department of Labor, formal opinion letters from the EEOC can serve as a defense to liability. Whether this new process will survive the change in administrations is unclear.
House Democrats Outline Desired Employment Policy Changes. This week, Democrats on the House Committee on Education and Labor issued a report entitled “The Future of Work: How Congress Can Support Workers in the Modern Economy.” The report advocates for the passage of the Protecting the Right to Organize (PRO) Act and makes the following additional specific policy recommendations:
- “[E]stablish employment tests that create a rebuttable presumption of employee status and include clear requirements that an employer must demonstrate to overcome this presumption, such as the ‘ABC’ test.”
- Rescind the DOL’s 2020 rule on joint employment under the Fair Labor Standards Act and replace it with the 2016 Administrator’s Interpretation on joint employment.
- “To promote collective bargaining beyond the firm level, Congress should explore policy options for encouraging and promoting sectoral bargaining.”
- “[D]irect the EEOC to establish a new division devoted to [combatting] digital discrimination.”
- “Both vendors and employers should be required to open their [hiring] processes to independent audits, conducted by or developed in conjunction with government regulators, the outcomes of which should be made public.”
These will all be issues to watch as the new administration and new Congress begin their work in 2021.
RIP, Paul Sarbanes. Former Maryland congressman and U.S. senator Paul Sarbanes died this past week at the age of 87. Sarbanes, an attorney, is perhaps best known for his role in the passage of the Sarbanes-Oxley Act of 2002. The act set new standards for publicly owned companies and accounting firms, and it developed as a result of multiple high-profile corporate fraud and accounting scandals in the early 2000s. Sarbanes represented Maryland in the U.S. Senate from 1977 to 2007—the second-longest tenure for a U.S. senator in Maryland’s history. Former U.S. senator Barbara Mikulski owns the record for longest-serving Maryland senator: she served one day longer than Sarbanes.