PCC Defense of Private Credentials
Skills Renewal Act-Federal
You may recall that, earlier this summer, the PCC launched a campaign (in coordination with PCC Steering Committee member ASAE) in support of the Skills Renewal Act, a bipartisan federal bill that would provide a $4,000 tax credit to workers displaced by the pandemic to attain skills training and credentials to permit them to seek/obtain gainful employment. We proposed amendments to the bill to ensure that the tax credit would cover certification exam expenses. Over a very active several week period, we had numerous conversations with legislative staff for the sponsors of the bill in the House and Senate, lobbied staff members on the key committees of jurisdiction, and transmitted a PCC letter announcing our support of the bill – subject to our proposed amendments, which were supported by the bill sponsors – to key Members of Congress. We also encouraged PCC members to send their own letters of support and to engage your memberships/certificants, as appropriate, to convey their support for the bill (subject to our proposed amendments) to their elected officials.
We are grateful for the support our membership demonstrated for this initiative and were pleased by the mostly positive feedback we received from Members of Congress and staff regarding our advocacy efforts and substantive proposals for changes. Unfortunately, the Skills Renewal Act has not advanced, in large part because Congress and the Trump Administration failed to construct a bipartisan COVID-19 relief bill prior to the start of its annual August recess. As such, there has not been a suitable legislative vehicle to which the Skills Renewal Act could be attached. We will continue to engage with the bill sponsors and other influencers in Congress to press our support for the bill and appreciate your continuing support. Our goal remains passage of this bill, with expanded language to include certification programs. Whether or not the bill advances, however, our efforts to educate members of the House and Senate and key Committee staff may prove useful for future bills and has raised the PCC’s profile on Capitol Hill.
Missouri Title Restrictions – State
At the end of May, the Missouri legislature passed a comprehensive occupational licensing bill that incorporated several provisions providing legal safe harbor to private certification programs and distinguishing such programs from government credentialing programs. The PCC originally drafted and successfully advocated for those provisions.
As we have previously reported to you, the bill that became law did not include an amendment to existing law that we had been seeking: an affirmation that an individual can legally hold themselves out as a “registered” professional if “registered” is used as the designation that is conferred under a private credentialing program. Under the language in the current law, the title “registered” is restricted to those who fulfill requirements to register with the state. After the passage of the legislation, staff for the bill sponsor with whom we had been working reached out to the Missouri Division of Professional Registration to confirm the Division’s interpretation that the restriction was intended to apply only to those who falsely hold themselves out as having registered with the state and that an individual who has earned a credential from a private certification organization may lawfully use that title. Staff for the Division confirmed this interpretation in writing to the Senator’s staff in an email that we obtained. However, in the interest of legal certainty, the PCC followed up on that communication by sending a letter to the Director of the Division to request that the Division formally confirm our favored interpretation in writing, as official policy/guidance from the Division.
Beltway Buzz, Ogletree & Deakins
“Skinny” Coronavirus Package Blocked. Congress returned to Washington, D.C., this week following an August recess, but didn’t do much to move the ball forward on pressing issues such as coronavirus relief, postal service aid, or federal government funding beyond September 30, 2020. On September 10, 2020, Senate Democrats defeated a targeted pandemic stimulus package that included a $300 weekly unemployment premium, employer COVID-19–related liability protections, assistance for the United States Postal Service, childcare and educational support, and money to combat the virus. Though things can of course change, this likely means that there will be not be a coronavirus relief package prior to the November 2020 elections.
Regarding government funding, it seems that a continuing resolution maintaining current funding levels will be the favored legislative vehicle. Democrats will likely push for the continuing resolution to run into 2021 when a potential Biden administration would have leverage and could take a fresh look at federal spending.
Joint-Employer Rule Struck Down. On September 8, 2020, the U.S. District Court for the Southern District of New York struck down the most significant element of the U.S. Department of Labor’s joint-employer regulation under the Fair Labor Standards Act (FLSA). In deciding a legal challenge filed by a group of state attorneys general, the court ruled that the joint-employer regulation impermissibly conflicted with the statutory text of the FLSA (particularly the definitions of “employer,” “employee,” and “employ”), that the rule’s “control-based test for joint employer liability [was] unduly narrow,” and that “the Department did not adequately explain why it departed from its prior interpretations.” Because the regulation has been in effect since March 16, 2020, the ruling stirs up a sea of uncertainty for employers.
H-1B Changes Expected. On September 3, 2020, U.S. Citizenship and Immigration Services sent to the Office of Information and Regulatory Affairs its draft proposal to make significant changes to its regulations implementing the H-1B visa program. The proposed rule is expected to limit the definition of “specialty occupation” and place restrictions on the use of third-party customer sites. The current administration is determined to have the regulation finalized and in effect before a potential Biden administration, so the changes are expected to be implemented as an interim final rule, without the benefit of public comment. The rule is expected to issue in September or in early October 2020.
EEOC Clarifies Its “Pattern or Practice” Enforcement. On September 3, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an opinion letter clarifying its interpretation and enforcement of “pattern or practice” litigation under § 707(a) of Title VII of the Civil Rights Act of 1964. Over the years, the distinctions between § 707 pattern-or-practice cases and § 706 discrimination cases that the EEOC pursues on behalf of individual employees have blurred. The letter confirms that when pursuing § 707 pattern-or-practice cases, the EEOC must follow the same administrative prerequisites as when pursuing § 706 cases on behalf of individual employees, such as the requirement of an underlying charge of discrimination and engaging in conciliation.
NLRB General Counsel Issues Memo Affecting Neutrality Agreements. On September 4, 2020, National Labor Relations Board (NLRB) General Counsel Peter B. Robb issued Memorandum GC 20-13, the “Guidance Memorandum on Employer Assistance in Union Organizing.” The memorandum harmonizes two different legal standards that have been applied when an employer impermissibly assists a union in its organizing effort and when an employer impermissibly assists employees seeking to decertify a union. Pursuant to the memo, the Board is instructed to apply the same “more than ministerial aid” standard in both situations. The memo is particularly focused on neutrality agreements and instructs that their provisions “should be examined under the lens of whether they provide ‘more than ministerial support’ to the union’s efforts to organize.”
FEMA Unemployment Insurance Update. As of September 9, 2020, 48 states, as well as Guam and the District of Columbia, had been approved for Federal Emergency Management Agency (FEMA) grants under the lost wages assistance program. Nevada and South Dakota have not signed on. Some states that were early adopters are already close to the end of their sixth week of benefits.