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Punching In: Reopening Puts Businesses, Workers in Tough Spot

May 11, 2020, 9:25 AM

Monday morning musings for workplace watchers

Gene Liable to Tackle Liability | ULPs in Time of Covid-19| DOL Goes to Court

Ben Penn: There’s no avoiding it. Washington is on track for a heated, partisan clash over the next phase of Covid-19 relief. As the focus shifts to returning Americans to their jobs, workplace policy is at the heart of the action.

More details should trickle out this week on the legislative wish lists from the White House and Capitol Hill. We’ll soon get a better idea of where Labor Secretary Gene Scalia and his team fit in the debate, too.

Some business community advocates, Republicans, and DOL staffers say Scalia didn’t get the proper deference on employment policy matters in previous rounds of coronavirus response negotiations. Treasury Secretary Steve Mnuchin, who quarterbacked the administration’s bargaining with Democratic leadership, consulted with DOL leaders, but overruled them on certain paid leave and unemployment insurance policy debates, sources say.

The complaints could be sour grapes from those on the right who think Mnuchin may have been a little too deferential to House Speaker Nancy Pelosi (D-Calif.). Still, there’s a push to make Scalia a key player in the next round of federal aid talks.

Senate Majority Leader Mitch McConnell (R-Ky.) has identified business liability protection from worker lawsuits related to coronavirus as a precondition for state and local government funding. If there’s one thing this labor secretary and veteran corporate litigator knows, it’s shielding employers from liability in the courtroom. Check out his list of clients at Gibson Dunn if you have any doubts.

No wonder a top Senate Republican aide said the liability protection will be “Scalia’s bailiwick.”

Any safe harbor from legal responsibility will require complicated legal analysis of intersecting statutes and spur a fierce fight from Democrats.

I asked Deputy Labor Secretary Pat Pizzella last week if Scalia is already working with GOP senators to craft language that would protect businesses from virus-related lawsuits in the next stimulus.

“All I can say is this issue is one that he is quite familiar with given his background, so it’s not unusual that people are seeking his input, but I don’t want to go into any details,” Pizzella said.

Chris Opfer: The push to restart the nation’s economy is putting many businesses and their workers between a rock and a hard place. Although reopening restarts revenue streams and paychecks, it also comes with the risk of spreading the coronavirus to customers and employees.

The Trump administration and Republican lawmakers want to ease the burden for companies by limiting their liability, but the feds don’t appear to have any plans to appease workers worried about getting sick when they go back on the job. That could lead some to turn to the National Labor Relations Board.

Ohio and other states already are encouraging employers to report workers who refuse to return to the job, to ensure that they can’t continue to collect unemployment benefits. That means many workers who aren’t sick will be required to go back to the job unless they qualify for new virus-related leave or—perhaps—have a medical condition that puts them at heightened risk of infection.

A federal judge in Missouri last week said workers at a Smithfield plant in the state challenging their work conditions after a Covid-19 outbreak at the company’s Iowa facility must take their legal beef to the Labor Department’s Occupational Safety and Health Administration. OSHA, meanwhile, recently announced that it won’t go after employers who follow basic worker safety guidelines during the pandemic and will consider helping defend them from private lawsuits related to workplace infections.

Workers who are fired or reported to state officials for balking at punching the clock during the pandemic may still be able to seek recourse with the NLRB. When employees get together to voice concerns about workplace issues, that’s generally considered concerted activity protected by federal labor law. An employer who retaliates against workers for that kind of activity is looking at a possible unfair labor practice complaint.

“There’s a potential ULP for any workers who act in concert to raise safety issues or even just try to get group action off the ground,” Jeffrey Hirsch, a former board agent who teaches labor law at the University of North Carolina, told me. But employers who follow federal and state safety guidance may be able to fight those charges on the grounds that the workers’ fears of infection are unreasonable, an issue that could work its way up to the board’s three Trump-appointed members, Hirsch said.

That’s not to mention that the board is likely to at least try to avoid doing anything that conflicts with policy out of OSHA or other corners of President Donald Trump’s administration. The ball will be in General Counsel Peter Robb’s court if and when unfair labor practice charges start rolling in.

“The general counsel has the final authority to issue a complaint,” said Jerry Hunter, who was the NLRB’s top lawyer during the George H.W. Bush administration. “For policy reasons—including that the Labor Department has said fear of Covid-19 is not a sufficient reason to refuse to go to work for unemployment insurance purposes—the general counsel could refuse to issue a complaint in some of these situations.”

BP: The front half of this week is stacked with two big Labor Department regulatory developments. The DOL’s Industry-Recognized Apprenticeship Programs initiative formally launches Monday, nearly three years after Trump used an executive order to get the DOL to expand apprenticeships.

Organizations such as trade associations, corporations, and community colleges can start applying to become a “standards recognition entity,” giving them the power to certify employers’ apprenticeship programs as IRAPs. The pandemic has distracted us from the build-up to what was once the centerpiece of the White House workforce policy agenda, but as businesses look to rebound with workers trained in health care or IT and laid-off workers try to restart their careers in a new field, IRAPs may have a role to play.

On Tuesday, the Trump administration squares off against the New York attorney general’s office over the state’s lawsuit challenging DOL’s emergency paid leave rule. Lawyers for New York will present oral arguments in federal court via telephone, urging the judge to expand access to more workers affected by coronavirus, while DOJ lawyers will ask for the case to be tossed for lack of standing.

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.

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To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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