COVID-19 Update September 23, 2020

We just wrapped our NAPEO Federal Affairs Committee call, and there is a lot to unload.

Firstly, the death of Justice Ginsburg has added to the tension within Congress, leading us to believe that there is a slim chance of any sort of stimulus package passing before November 3^rd.  Most recently, there was a bill passed by the House that is supposed to flow through the senate without any issues, but it’s merely a band-aid to keep the government running till December 1^st or after the election. Unfortunately, those expecting new PPP information will have to wait until the elected president dictates the size and scope of any COVID-19 relief to come.

Next, the Department of Labor (DOL) has issued proposed regulations that will distinguish independent contractors from employees with entitled benefits under the Fair Labor Standards Act (FLSA). Much of this stems from issues with UBER and Lyft in regard to whether the drivers are employees or contractors. According to synopses from various labor attorneys, before the end of the year, the current administration is trying to make it easier for people to be listed as independent contractors instead of employees, and they don’t think this regulation won’t be challenged in court as soon as the rules go into effect. Many states (i.e. CA/NY) that are opposed to this ruling already have their own clear definitions of employees vs contractors in place, so this rule may not even affect them.

The DOL proposes to sharpen this inquiry into five distinct factors, instead of the five or more overlapping factors used by most courts and the DOL previously. Consistent with the FLSA’s text, its purpose, and the DOL’s experience administrating and enforcing it, the DOL proposes that two of those factors—the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss—should be more probative of the question of economic dependence or lack thereof, and thus are afforded greater weight in the analysis than any others. For example, perhaps an Uber Driver does have control of when they work and the vehicle they drive, but they also have the ability to upgrade their equipment, which would allow them to charge more for their services.

Furthermore, as part of his worker protection package, California Governor Gavin Newsom signed Assembly Bill 685 (AB 685) on September 17^th, which authorizes the Division of Occupational Safety and Health (“Cal OSHA” or “division”) to prohibit operations and processes, and prevent entry into workplaces that it has determined present a risk of infection of COVID-19 so as to constitute an imminent hazard to employees. AB 685 separately requires employers to provide specified notifications to employees within one business day of receiving notice of potential exposure to COVID-19. The law takes effect on January 1, 2021.

Lastly, Louisiana Legislature just issued a proclamation to reconvene on September 26^th to work on issues with unemployment and other items due to both the pandemic and recent hurricanes. On top of everything this year, natural disasters are reaching historic levels of destruction. Please continue to stay positive – we will get through this together, stronger than before!

P.S. if you missed our first vlog episode of Dialed in with Delta, featuring experts discussing a controversial start to the school year, we have uploaded the recording to our website here.