RISE and SHINE Act. It is just a discussion draft, so need to get too excited
at the prospect of more bi-partisanship (maybe this author is
alone in his excitement over that potential), but recently, Chair
Patty Murray and ranking member Richard Burr of the Senate HELP
Committee released the so-called Retirement Improvement and Savings
Enhancement to Supplement Healthy Investments for the Nest Egg Act
draft bill. The measure pulls from two bills that have already
passed the House by sweeping, bi-partisan margins — the
Retirement Improvement and Savings Enhancement Act (H.R. 5891, “RISE Act”) and the
Securing a Strong Retirement Act of 2021 (H.R. 2954, “SECURE 2.0” which we
wrote about here). The proposed measure includes a wide
range of policies aimed at creating additional protections for
workers saving for retirement. For example, the measure would allow
employers to offer emergency savings accounts and expand access to
employer-provided retirement plans through multiple employer plans,
and through increased access to plans for part-time workers.
OSHA Continues Rulemaking Push Despite Vaccine
Setback. Before the pandemic, for most, OSHA was a little
discussed, at times forgotten, yet incredibly important federal
agency. But that has all changed. Especially with the 24-hour media
coverage of OSHA’s so-called vaccine mandate at the beginning
of this year.
While the “vaccine mandate” was a short setback, that
has not deterred OSHA from rulemaking in the infectious diseases
space, and other workplace safety areas of interest. For example,
On May 25, 2022, Douglas Parker, Assistant Secretary for OSHA, testified — and issued a written statement — before the U.S. House
Committee on Education and Labor’s Workforce Protections
Subcommittee regarding his agenda for the Agency. Assistant
Secretary Parker identified developing an infectious disease
standard for high-risk workplaces as a priority, suggesting that
had one been in place prior to the pandemic, “OSHA would have
been in a better position to address COVID.” Speaking of
COVID, employers should be wary as OSHA continues to pursue
COVID-related enforcement. Indeed, OSHA is opening new COVID-19 programmed
inspections focused on high hazard worksites. Employers should also
be cognizant of the National Emphasis Program OSHA launched in
April concerning indoor and outdoor heat illness, which Seyfarth
summarized here.
Other areas ripe for rulemaking include: workplace violence in
health care, heat hazards, and recordkeeping.
After Months Of Wild Growth, Job Numbers Finally Evening
Out. According to a Bureau of Labor Statistics report that came out earlier this week, job
numbers are finally starting to stabilize. The BLS reported 1.9 workers for
every job, which is still historically a very high number and
certainly points to a robust labor market, but it is down from
recent highs. The number of layoffs and discharges fell to a record
low of 1.2 million in April, demonstrating that employers are doing
what they can to retain employees, mindful of the fact that
rehiring for those positions down the line could be difficult and
expensive. The Federal Reserve will likely be closely reviewing
this report, as the number of job openings is one of the key
figures it looks to in deciding how to manage the country’s
economic recovery.
Maine Joins Handful Of States Requiring Payout of
Accrued Vacation Upon Separation. As Seyfarth summarized
here, with the enactment of H.P. 160 – L.D. 225 or “An Act Regarding
the Treatment of Vacation Time Upon the Cessation of
Employment,” Maine joins a small number of states —
e.g., California, Colorado — mandating the payment of unused,
accrued vacation upon termination. While the Act goes into effect
on July 19, 2022, Maine employers have until January 1, 2023 to
comply with the requirements of the amended Act. There is an
exemption for collective bargaining agreements and the penalty for
failure to comply would be the same as for other unlawfully
withheld wages.
“Acting” Heads Of Important
Federal Agencies Greenlit By The Federal Circuit. A
back-door method for keeping temporary government agency heads in
place under the 1998 Federal Vacancies Reform Act was endorsed by a
ruling from the Federal Circuit Court of Appeal this week. The
Federal Circuit acknowledges that its narrow application of that
law, intended to limit the time period during which a temporary
official can serve in a position requiring Senate confirmation,
renders its scope “vanishingly small.” The Federal
Vacancies Reform Act states that an official who is not prescribed
to take on the role permanently can only serve for either 210 days
beginning when the vacancy opens or while the nomination for a
permanent official is pending. The decision has already received
criticism for undercutting the Senate’s role in making
decisions on who should serve as heads of agencies and in important
roles within those agencies. As a result, more litigation over the
subject is expected.
SEC Continues Its Environmental, Social and Governance
(ESG) Push. As Seyfarth explained here, while the SEC has typically shied away
from the ESG disclosure debate, that changed this year when the SEC
has announced a number of actions that include, among others: a
task force to harmonize the efforts of the SEC’s Divisions and
Offices, addressing shareholder rights, and creating
accountability. This push continued, As Seyfarth explained here, when on May 25, 2022 the SEC announced
two sets of proposed rule amendments aimed at
“greenwashing” in investment funds. One set of amendments
would require enhanced disclosures by investment funds claiming to
have an ESG focus while another would require funds with names
denoting certain characteristics to have at least eighty percent of
its value in investments reflecting those characteristics. The
SEC’s commentary makes clear that the rule enforcement focus
will be on funds with names reflecting an ESG-principled investment
strategy, such as “green” or “socially
responsible.”
In separate but related ESG news, as Seyfarth summarized here, the SEC recently denied requests from
two different companies to exclude from its proxy materials a
shareholder’s proposal concerning ESG investment options under
the company’s retirement plan. Specifically, one shareholder
issued a proposal, as permitted by the SEC, noting that every
investment option in the company’s retirement plan contained
“major oil and gas, fossil-fired utilities,” etc., or the
retirement plan does not offer any equity funds that are “low
carbon” and contradicted the company’s stated climate
reduction commitment. The companies sought to exclude the proposal;
the SEC said no. Seyfarth’s beneficially yours blog has been tracking this
important issue. It is worth a read.
Unionization Is All The Rage Right Now, And The
Zeitgeist Extends To The Exotic. Following precedent
currently being set by employees of certain Fortune 500 companies,
Exotic performers at an topless dance club in Los Angeles recently announced that they plan to form a
union. If successful, they would be the only unionized nude dance
club in the country. The performers have organized under an
independent labor group called Strippers United, and their primary
goals are enhanced safety and health measures, enhanced job
protections, and better wages. This comes in the wake of performers
sending a petition to the club’s owner demanding improved
safety and health conditions and reinstatement of workers who have
alleged unfair retaliation. They have also filed unfair labor
practice charges with the NLRB, and safety complaints with the
California Division of Occupational Safety and Health. It does not
appear that a representation petition (seeking a union election)
has been filed with the NLRB at this point, but the public
statements by Strippers United would seem to indicate that one may
be coming. Only time will tell whether this is the beginning of an
industry trend or a one-off situation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
