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Punching In: Covid-19 Benefits, Liability Questions (Corrected)

April 20, 2020, 9:51 AMUpdated: April 22, 2020, 3:19 PM

Monday morning musings for workplace watchers

You Call That “Diminution”? | Labor Competition Police | Gimme Shelter

Ben Penn: More states should be gradually launching unemployment insurance system upgrades this week to accommodate gig workers. It’s fair to say many are struggling to grasp the complexities of the new Pandemic Unemployment Assistance program for independent contractors and others who typically aren’t eligible for jobless benefits.

One major question to resolve: Can Uber and Lyft drivers and other self-employed folks get unemployment benefits if they stay home because of plummeting demand and fear of infection?

“There’s a number of criteria that an individual can look at to see if they are eligible” for Pandemic Unemployment Assistance, said a senior Labor Department official on a call for reporters last week. “And one of those is … if there’s a significant diminution of their work as a result of Covid-19. We tried to be as clear as we could in the guidance.”

That’s seemingly a big deal for the slew of rideshare drivers who aren’t infected with Covid-19 and can work but have a much harder time earning a dime until the pandemic subsides.

It turns out, however, that “significant diminution” of work isn’t on the list of PUA eligibility criteria the DOL put out in the April 5 guidance.

One state labor official told me he’s planning to follow up with the department to try to find out if the rules of the road have changed.

I asked DOL, too. An agency spokeswoman replied: “A significant diminution of work as a result of COVID-19 may also meet the COVID-related eligibility requirement for PUA. DOL plans to publish frequently asked questions related to PUA in the near future and will address this issue more directly.”

DOL tried to assuage Democrats’ concerns on that point and other PUA eligibility issues in a letter sent Friday to Senate Minority Leader Chuck Schumer.

Chris Opfer: The Trump administration recently fired a warning shot at anyone looking to exploit worker shortages during the pandemic. The Justice Department and Federal Trade Commission said last week that kind of scheming could result in steep fines and even criminal prosecution.

The feds are on the lookout for staffing agencies, recruiters, and businesses colluding to fix pay rates, limit hours or prevent workers from changing jobs, in violation of antitrust law. Although they didn’t identify any specific active cases, the Justice Department and the FTC said they’re particularly concerned about health care, grocery, shipping, and other essential workers that are in high demand.

The crackdown on anticompetitive “supply side” labor activity comes after courts in recent years also have taken a closer look at the “buy side,” going after companies in Silicon Valley and elsewhere for overly broad “no poach” agreements that limit employees’ ability to jump ship. Just ask Apple Inc. and Google, which in 2015 agreed to pony up $415 million to settle a class action alleging the companies agreed not to poach each other’s employees.

The takeaway for health care and other employers scrambling to staff up to meet rising demand is that the pandemic isn’t a “get out of jail free” card, according to Jonathan Grossman, an antitrust lawyer for Cozen O’Connor.

“The fact that you were well-intentioned and wanted to get the most workers taking care of the most Covid patients doesn’t help if the result is that they’re being paid less,” Grossman said.

At the same time, the Justice Department has said there’s plenty of opportunity for companies to team up on coronavirus relief. The DOJ’s antitrust division in early April told McKesson Corp. and a number of medical supply companies that it wouldn’t challenge their collaboration to airlift mask, gowns, and other protective equipment to buyers in pandemic hot spots.

Jaclyn Diaz: Businesses and some political advocacy groups, such as Americans for Prosperity, are calling on congressional lawmakers to shield employers from lawsuits by workers who believe they got sick on the job. The U.S. Chamber of Commerce issued a letter to its membership on Monday that cited the major liability threat businesses face as they begin drafting return-to-work plans.

The push comes as frontline health-care and retail workers continue to become infected with the novel coronavirus.

Early signs show that businesses could face other types of coronavirus-related lawsuits, including litigation over new paid sick and family leave requirements, as evidenced by a recent case in Pennsylvania.

Some companies are trying to get ahead of the game.

The Coalition for Workforce Innovation last week urged lawmakers to ensure that independent contractors receiving coronavirus relief can’t use that to prove they should be classified as employees. The group also wants a safe harbor that would allow companies to give workers access to certain health and safety protections on the job without being tagged their “employer.”

The coalition was created by the Retail Industry Leaders Association, and counts gig companies like TaskRabbit, Lyft, and Postmates among its members. It has Republican friends on the House Education and Labor Committee, who have called for similar protections for companies.

“Businesses should be allowed to assist independent contractors without risking the independent status that the vast majority of these workers prefer. Doing so would protect businesses from additional legal and regulatory burdens at a time they can least afford it, while preserving workers’ flexibility and earning opportunities when they need it most,” the Republicans said at the time.

BP: Who says the Covid-19 economy has made it impossible to find a job?

The DOL welcomed several new political hires in recent weeks, according to a staffing notice reviewed by Bloomberg Law.

The fresh faces include former Kirkland & Ellis attorney Nicole Brightbill, now a senior counselor in the DOL policy office, and former Missouri state lawmaker Kevin Corlew, the labor secretary’s regional representative in Kansas City. Allie Schroeder is now DOL’s regional representative in New York, following a stint at the Small Business Administration. D.C. trade association veteran Sylvester Giustino has joined the department’s Public Liaison Office as deputy director.

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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(The 15th paragraph was corrected to clarify that the U.S. Chamber of Commerce’s letter was issued only to its membership. The article first published April 20.)

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

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

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