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Election, Covid-19 Have Lawyers Prepping Companies for Change

Oct. 27, 2020, 10:01 AM

Some of the country’s largest law firms are helping companies navigate workplace laws and regulations that may soon shift under their feet, thanks to spiking coronavirus infections and the upcoming elections.

“Covid has really magnified the importance of compliance on the workplace safety side,” Jonathan Snare, a former Labor Department official and current partner at Morgan Lewis, told Bloomberg Law. “Then you add in the election coming next week and it underscores a lot of the issues and challenges that employers are facing.”

Morgan Lewis on Tuesday will announce the launch of a new practice group for workplace government relations and regulations, comprised of a number of former Trump and previous administration officials. The mammoth law firm that advises major companies and regularly defends those accused of violating workers’ rights is also holding a series of invite-only meetings with current leaders of federal labor and employment agencies.

The moves come as the race for the White House hits the final stretch and daily Covid-19 infections reach new highs in the U.S. A win for former Vice President Joe Biden (D) would likely mean new workplace safety and paid sick leave requirements, more court battles over workers’ rights, and a broader shift away from the business-friendly policies of President Donald Trump’s administration.

The pace of any change will depend largely on who controls the Senate, with divided government likely to stall many agenda items that would require congressional action. While a Biden Labor Department would be expected to quickly toughen safety requirements for businesses operating during the pandemic, other regulatory and enforcement changes are more likely to trickle out over time.

“Many people think that various agencies are reborn the moment that there is a new administration or the majorities change in Congress,” Philip Miscimarra, a Morgan Lewis partner and former National Labor Relations Board chairman, said. “But there is a very broad range of issues that are handled the same way, in part because those agencies are filled largely with career employees.”

The firm has long had a revolving door with the federal government, sending attorneys to fill top administration roles and then welcoming them back. Still, Morgan Lewis isn’t the only game in town: Attorneys at large labor and employment law firms like Littler Mendelson, Seyfarth Shaw, and Ogletree say they’re also helping high-profile companies prepare for an uncertain future if Biden were to win.

“We’re looking at an extremely progressive agenda at least on the regulatory side and possibly on the legislation side,” Michael Lotito, who runs Littler’s Workplace Policy Institute, said of a possible change in the White House. He cited likely efforts to raise the minimum wage, require sick leave, and make it harder to treat workers as self-employed independent contractors.

“Employers are going to have to take a broader view of the impact that these kinds of initiatives may have, beyond just the company-specific impact,” he said.

Littler is preparing a report for clients and plans to host a webinar on the impact of the election Nov. 6.

‘Spectrum of Challenges’

The new Morgan Lewis practice group is meant to combine expertise from veterans of various federal agencies. The firm’s lawyers will advise businesses on “the spectrum of challenges that can implicate more than one agency,” Miscimarra said.

The group features former Equal Employment Opportunity Commission (EEOC) Commissioner Chai Feldblum (D) and her chief of staff, Sharon Masling, as well as former National Labor Relations Board (NLRB) member Harry Johnson (R). Snare, who ran the Occupational Safety and Health Administration (OSHA) for part of the George W. Bush era, and former Labor Department lawyer Susan Harthill, are also part of the group.

The firm counts some of the largest companies in the world among clients.

Morgan Lewis lawyers have recently defended Amazon.com Inc. in a lawsuit alleging the online retailer shorted delivery drivers on overtime pay, fought a class action accusing Lockheed Martin Corp. of discrimination against Black employees, and represented Dell Technologies Inc. in a lawsuit by a transgender employee who said she was harassed and fired after transitioning. The firm also represents a trade group challenging a New Jersey law that requires companies to pay severance when they make mass layoffs.

Worker advocates are hoping for a change at the federal level on Election Day, which would usher in a new approach to a number of issues.

“The pandemic presents an important opportunity for the Labor Department,” Adam Pulver, a former DOL lawyer who now works for advocacy group Public Citizen, said.

“In the short-term, the department would be able to take more steps to protect workers, particularly low-wage workers who are going back to fairly dangerous workplaces at a higher rate than white collar employees,” Pulver said.

Morgan Lewis is hosting a series of webinars in the coming weeks with a number of big names in the current administration. The events include meetings with EEOC Chairwoman Janet Dhillon (R), NLRB Chairman John Ring (R) and member Lauren McFerran (D), and DOL Labor Solicitor Kate O’Scannlain. Craig Leen, who runs the Labor Department office that polices pay practices for a wide range of federal contractors, is also scheduled to participate.

A Biden win would mean a party change in the White House, but it won’t immediately bring a change in control of the EEOC and NLRB. The Senate-confirmed leaders at both agencies serve five-year terms, meaning that Republicans will continue to control both agencies—and fill their top lawyer spots—for at least much of next year.

Even officials who are on their way out the door can offer some important insight, Harthill, who worked at the Labor Department in the Obama and Trump administrations said.

“People want to hear from the agency leadership and what their priorities are, regardless of the results of the election,” she said. “If there is a change, what have they put in place that they hope will stay? If there isn’t a change, what comes next?”

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

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