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Punching In: Getting Down to Business on Virus Liability, UI Fix

July 20, 2020, 9:55 AM

Monday morning musings for workplace watchers

GOP’s Liability Shield | Compromise on UI? | Builders’ Biden Beef

Jaclyn Diaz: It’s difficult to overstate the pressure on Congress as lawmakers return to Washington this week, with coronavirus resurgent across the U.S., the labor market rebound showing signs of slowing, and expanded weekly unemployment benefits days away from expiring.

Senate Republicans plan to unveil a stimulus proposal this week that will trigger formal talks with Democrats—long-awaited by millions of unemployed workers and struggling businesses alike—on what could be the last major relief measure before voters head to the polls in November.

The Senate GOP proposal is expected to include provisions for employer protections from federal labor and employment laws, as well as agency investigations, if they follow public-health guidelines, according to a draft summary of the bill’s liability component.

Business groups, such as the U.S. Chamber of Commerce, have given significant input to Senate GOP leaders drafting the proposal. For the business community, the next major stimulus must include strong protections against lawsuits from workers and customers, which employers believe threaten return-to-work plans and economic recovery. Democrats are likely to resist those proposals, setting up one of the main fault lines in the coming talks.

The Senate Republican proposal is expected to explicitly state the guidelines businesses must follow to be covered by the liability protections, according to a senior Republican staffer who was briefed on the bill’s contents and spoke on condition of anonymity.

A big question is whether the GOP bill will feature retroactive protections for businesses. The Chamber favors a retroactivity clause going back to at least December 2019, so the shield would apply to pending claims. That issue was still being negotiated as of late last week, the GOP staffer said.

While state lawmakers in Louisiana, North Carolina, Oklahoma, Utah, and Wyoming have begun enacting broad liability shields, the Senate Republican proposal may include a blanket policy that would supersede any state-level protections, the GOP staffer said. The draft summary last week didn’t mention such a provision.

Some Democrats may be unwilling to negotiate on a liability shield. An aide to Sen. Patty Murray (D-Wash.) called the proposal a “non-starter.”

“Republicans have made it clear that their number one priority for our COVID response is to prevent employers from being held accountable for keeping their workers, students or patients safe. But now, it appears that they may be planning to take it one step further by using this pandemic as an excuse to rollback existing labor laws,” the aide said.

Another option for Republicans is to link liability protections to language directing the Occupational Safety and Health Administration to issue an emergency temporary standard covering coronavirus transmission. That’s been a top Democratic workplace policy demand for months. But last week, a group of 10 House Republicans, led by Rep. David McKinley (R-W.Va.), urged House Minority Leader Kevin McCarthy to
consider coupling the requests in the next stimulus package.

Ben Penn: One of the biggest immediate questions heading into this week is whether Congress can do the seemingly impossible and pass a relief measure before the $600 weekly unemployment boost expires.

Absent a lightning-quick deal, state unemployment agencies will be federally mandated to de-program their software systems to halt the $600 payments starting the week of July 26-Aug. 1, except in New York, where the unemployment insurance reporting period is July 27-Aug. 2.

The partisan divide on extending expanded unemployment benefits is wide. Democrats are pushing for continuation of the $600 across-the-board plus-up, but Republican leaders have consistently argued against a second act for the full boost because they believe it discourages a return to work for many who now make more on unemployment than they did when they were punching in. Democrats, however, point to the recent spikes in Covid-19 infections across the U.S. as evidence that now is the worst time to cut off the expanded financial lifeline, which they say would prevent many jobless Americans from paying bills and meeting basic needs. Many Republicans like the idea of a return-to-work bonus.

Both sides are motivated to reach a compromise. But if the fix involves a varying formula to expand benefits based on prior wages, states likely will face even greater challenges in updating their systems to get new checks out.

Another question as the Senate returns from recess is whether there will be any time for undercard matters before the August break, such as scheduling floor time for a package of nominees for the National Labor Relations Board and Equal Employment Opportunity Commission.

Swift action on the five nominees, all of whom were advanced by the Senate labor committee last month, has been a priority for the business community and, to a lesser extent, worker advocates. Senate Majority Leader Mitch McConnell’s office previously said it would schedule a packaged vote by July’s end, but if there’s a quick vote, it’s now more likely to include only the NLRB duo, sources familiar with the process tell us.

Several factors complicate the process, but our sources say that at least one Republican senator has put a hold on Democratic EEOC nominee Jocelyn Samuels, a civil-rights lawyer who heads a think tank on sexual orientation and gender-identity policy. It wasn’t clear which senator has objected to Samuels, but the hold would stall confirmation of two Republican EEOC nominees who are part of the package.

If this is giving you Chai Feldblum déjà vu, you wouldn’t be alone.

Ian Kullgren: Presumptive Democratic presidential nominee Joe Biden pitched his new climate plan as a job creator. The former vice president said last week he wants to invest $2 trillion in clean energy and move to carbon-free power by 2035. He envisions creating 1 million auto-sector jobs through investment in electric vehicle charging and other approaches, on top of 1 million jobs by improving home-energy efficiency and weather resilience.

Building trades union President Sean McGarvey sees things differently. McGarvey said a quick transition to renewable energy could eliminate thousands of middle-class jobs, hurting workers at the core of Biden’s constituency.

North America’s Building Trades Unions on Friday released a pair of studies, in the works since last year, that suggest workers who build pipelines, refineries, and other oil infrastructure would suffer deep pay cuts in the transition to renewable energy unless other changes are made to the industry.

The union’s efforts to promote those studies, after Biden released his plan last week, amounted to a shot across the Democrat’s bow and highlighted a growing rift between NABTU and other manufacturing unions, such as the United Auto Workers and International Brotherhood of Electrical Workers, both of which praised Biden’s climate concepts.

Asked by a reporter whether Biden’s 15-year timeline for eliminating fossil fuels is achievable, McGarvey said simply: “I’ve read it. You know, the devil is always in the details.” McGarvey acknowledged that Biden’s plan discusses union jobs but said he’s “just not sure…how that gets done mechanically at this point.”

McGarvey’s response doesn’t bode well for relations between a potential Biden administration and NABTU. The union distanced itself from the AFL-CIO’s Biden endorsement in May, saying it was focused entirely on pandemic-relief efforts and would discuss “political considerations” later. McGarvey said last year the union might not make an endorsement in the presidential race.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us. See you back here next Monday.

To contact the reporters on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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