The National Law Forum

Happy Thanksgiving TCPAworld!: Here Are the Top 10 TCPA Stories to be Grateful For This Time of Year

I know that many of you have the sense that its all-bad-news-all-the-time around here and feel like there are simply no silver linings to be found– but there is ALWAYS something to be thankful for in life, and TCPAWorld is no exception.

And I know, I know, you’re all very thankful the Czar– and I’m thankful for you too. But this isn’t a hugathon folks, its a learn-all-about-it-athon. So without further adieu, here are the top 10 TCPA stories you should be thankful for this year:

No. 10: There’s a Great Book Out About the TCPA and It is Really Quite Funny

I know most of you spend those long winter nights catching up on old Unprecedented episodes with the family and perusing TCPAWorld stories you may have missed throughout there year, but you can add another festive activity to your eggnog-laden December evenings: reading Dennis Brown’s self-published TCPA masterpiece “Telephone Terrorism– The Story of Robocalls and the TCPA.”

Great book. Great subject matter. Really funny. The only downside is that its too quick of a read– I blew through it in a single afternoon and I was left wanting more.

Maybe 2021 will see the Czar writing his own TCPA novel? We’ll see if holiday wishes really do come true.

No. 9: At Least One Court Has Found that Knowledge of TCPA Violations Alone is not Enough to Hold a Corporate Officer Personally Liable for the TCPA

I’ve said it before and I’ll say it again– the rule holding corporate officers and employees personally liable for TCPA violations by the company is amongst the most unfair rules in the entire legal world. It makes no sense that folks trying to help companies comply with the TCPA might be held personally liable for accidental violations. Gross.

The Seventh Circuit Court of Appeals has pushed back a bit against this rule, however, and determined that mere knowledge of a TCPA violation alone does not trigger personal liability.

Give how disastrous personal liability can be for employees working for companies facing TCPA risk, any ruling ameliorating tis profoundly unfair rule is truly something to be thankful for.

No. 8: Courts Are (Slowly) Catching on to the Idea that Responses to Consumer Requests for Information About a Product or Service Are Not Marketing Messages

The line between marketing and informational messages can sometime be extremely blurry. And when you consider that courts are supposed to apply “common sense” in assessing whether a neutral message might yet have been sent with a “dual purpose” to market, or as a “pretext,” it starts to feel like determining if a message might be marketing is a bit of a crap shoot.

Still the law is slowly trending toward a workable framework in which responses to consumer requests for information are not treated as marketing (requiring WRITTEN consent)– but rather as informational calls (requiring the consumer to have merely supplied their phone number in requesting information.) This is a huge deal for direct mailers or advertisers that field massive numbers of inbound calls from consumers seeking information and then have to return those phone calls–often without express written consent. Its also important for folks whose disclosures don’t quite live up to the letter of the law for marketing purposes. Either way its nice to see “common sense” is slowly starting to be applied with a little common sense.

No. 7: The FCC Clarifies that P2P Texting Does not Violate the TCPA– Sort Of

I remember reading the Marks ruling for the first time and getting extremely excited at the beginning of the ruling– when the Ninth Circuit held that the FCC’s earlier braod TCPA rulings had been set aide by ACA Int’l–only to have my excitement turn to shock and ultimately agony as I read the rest of the opinion.

Reading the FCC’s recent P2P rulings was a similar experience, only a bit watered down. The ruling was seemingly great for businesses and candidates using P2P text solutions, but somehow the language didn’t quite match what the ruling seemed to be saying– if you know what I mean. Read one way the ruling is a huge win authorizing P2P texts across the broad. Read another way the ruling simply confirmed that texts launched by the manual entry of an entire phone number and an entire message didn’t violate the TCPA so long as the system didn’t otherwise have the capacity to act as an ATDS–which is not really very helpful at all.

While courts are struggling with what, exactly, the ruling means– we should all be thankful that the FCC certainly seems to have blessed P2P texting platforms, even if the language of the ruling is somewhat open to interpretation.

No. 6: Some Manufactured TCPA Lawsuits Are Getting the Boot

Ever since my huge win back in Stoops, manufactured TCPA lawsuits should be subject to dismissal. Unfortunately, TCPA defendants have–by and large–not leveraged the case properly, resulting in an avalanche of decisions distinguishing Stoops and allowing repeat TCPA litigators to continue to thrive in the courtroom.

But as two recent court decisions prove, leveraging Stoops properly can lead to big wins– such as where a Plaintiff engages in conduct designed specifically to attract more TCPA violations, or uses a business number specifically to set a trap for marketers.

No. 5: TCPA Filings are Flat Year Over Year–And Declining

TCPA filings are up a meager 4% year to date over last year. But there were a huge number of early-year filings but they have mostly dwindled as the year has run on.

Indeed the last couple of months have seen a sharp decline in TCPA filings as Plaintiff’s lawyers keep their powder dry and await the big SCOTUS ATDS ruling. In fact, I have talked to a number of TCPA plaintiffs lawyers who openly admit they are holding on to TCPA suits that will be filed, if at all, only after the Supreme Court hands down its big Facebook ATDS ruling (more on that below).

Even if the low TCPA count this year might be a bit of a mirage–and TCPAWorld might be facing a huge surge next year–the brief respite is still something to be thankful for.

No. 4: The Eleventh Circuit Court of Appeals

One of the things callers should be MOST thankful for this year is that the entire Eleventh Circuit Court of Appeal woke up some sleepy Tuesday in September, went to its toolshed, found a flamethrower, and decided to torch TCPA class actions in the jurisdiction.

For about a year now the Eleventh Circuit has systematically dismantled the TCPA machine that had built up in Florida. It was a remarkable turn of events–worthy of its own TCPA novel– as the once-friendliest jurisdiction for TCPA suits flipped on a dime and became the ultimate Defense paradise.

No. 3: Facebook Looks Like a Heavy Favorite to Win Its SCOTUS ATDS Appeal

Hopefully I didn’t just jinx them, but Facebook is really looking strong headed into oral argument on December 8, 2020. With Justice Barrett–the former Seventh Circuit Court of Appeals judge that wrote the defense-friendly Gadelhak decision— installed at the Supreme Court, Facebook is playing with a stacked deck. But the incredibly persuasive work by the U.S. Government (i.e. the Solicitor General’s office) is the real ace in the hole here.

The TCPAWorld.com probability dial–which once showed Duguid as a slight favorite following the AAPC ruling–is now suggesting an 85% chance of victory for Facebook. That’s a big swing in our analytic simulation model, which doesn’t actually exist.

And remember, if Facebook pulls it off it was all thanks to TCPAWorld.com convincing the Supremes to take the appeal in the first place. That’s how I remember it anyway.

No. 2: All Robocalling Sins Have Been Wiped Away for a Long Four Years –According to Some Courts Anyway

Undoubtedly the biggest TCPA story of 2020 is the Supreme Court’s big ruling in AAPC and the profound impact it (may have) had on liability for calls made prior to July 6, 2020.

Like so much else in TCPAWorld, the impact of AAPC turns on your point of view. From one perspective the Supreme Court ruling was a ho-hum decision isolating a single exemption for First Amendment review and severing it when things didn’t line up for it. From another perspective–mine–it was a free-speech-killing first-of-its-kind ruling that turned the First Amendment into an ironing board. But from another–critical–perspective it was a ruling in which the U.S. Supreme Court determined the entire TCPA was unconstitutional and had to save the enactment by severing a content-specific exemption.

This later perspective is what animates two huge district court rulings that have determined that all calls made between November, 2015 and July, 2020 are simply not actionable. This is so because the TCPA was unconsttutional during that entire timeframe. This remarkable ruling means that the vast majority of calls made during the height of the Robocall epidemic of the 20teens are simply beyond the reach of plaintiff’s lawyers.

As I have suggested previously, by wiping out TRILLIONS in TCPA exposure the rule of Creasy and Lindenbaum amount to one of the largest wealth transfers (or at least, risk write downs) in human history. These are remarkable rulings, that are truly worth giving thanks for.

No 1: TCPAWorld.com Keeps Cranking out the Must-Read Content– and the VIDEOS

Rather obviously the thing TCPAWorld denizens should be most thankful for this year-and every year–is the hard working team here at Squire Patton Boggs and TCPAWorld.com. Not only do we deliver great first-in-the-nation wins, we break down every TCPA story as it happens, virtually in real time. And we’re not going to stop any time soon.

Plus, when COVID hit we moved to VIDEO podcasts to better engage with you folks and have been pumping out free webinars and learning sessions to make sure that YOU are armed with the information you need to protect yourself in the turbulent TCPA world.

And of course, we do it all for free. With no barriers to content. No unnecessary sign ups. No advertising. No pop up adds. No data sales. No nothing.

So when you raise your glass of cider over that delectable Thanksgiving feast on Thursday, you’ll be forgiven if TCPAWorld.com enters into the discussion of the list of things you’re most thankful for this year.

And we, of course, are endlessly thankful for each of you as well.

I guess this was a hugathon after all.

Stay grateful TCPAWorld.

ARTICLE BY Eric J. Troutman of Squire Patton Boggs (US) LLP

Privacy Tip #261 – Online Shopping Tips for the Holidays

I have done more online shopping this year than ever before, and I know that I am not alone. With the holidays approaching, this will only increase because of the pandemic, and hackers and fraudsters know it.

A recent report by GBG entitled “GBG State of Digital Identity: 2020,” states that 47 percent of individuals have open up a new online shopping account, 31 percent have opened a new social media account and 35 percent a new online bank account in 2020. In addition, one third of consumers 75 years or older have opened a new online account in 2020.

Additional depressing statistics from that report states that one in five individuals have been affected by identity fraud this year and were informed that their personal information has been exposed following the data breach. Therefore, one third of consumers have become more aware of and consumed about fraud and believe their personal information is exposed on the dark web.

GBG estimates that during the upcoming holidays, each online retailer will have to combat an average of 20,000 fraud attempts.

With these statistics in mind, a recap of tips to think about to protect yourself while online shopping during this holiday season may be helpful:

Be wary of emails with unbelievable sales that ask you to click on embedded links or attachments
When shopping online, visit the retailer’s actual website instead of a link that has been provided to you through an email
Use a credit card and not your debit card for all ongoing shopping
Use a dedicated credit card for all online shopping so if there is a compromise of that credit card it is limited to that one credit card
When asked if you want the online shopping site to save your credit card number, click “no thanks”
Be wary of gift card promotions or requests
Watch your credit card account statements closely
Check your credit report frequently

During this holiday season, support your local retailers, shop safely and have a happy, safe and healthy and Thanksgiving.

ARTICLE BY Linn F. Freedman of Robinson & Cole LLP

CPSC Issues COVID-19 Consumer Products Guidance, Further Muddying the Regulatory Waters and Increasing Scrutiny of COVID-19 Products

As the COVID-19 pandemic continues, and with an incoming Biden administration that is expected to step up efforts to control the spread of the virus, use of personal protective equipment (“PPE”) and cleaning/disinfectant products has never been more important or widespread among the public. However, in late October, the Consumer Product Safety Commission (“CPSC”) issued guidance on its website asserting that certain consumer protection rules within its jurisdiction apply to PPE, and reminding consumers of the CPSC laws that apply to cleaning/disinfectant products (the “COVID Guidance”).

The CPSC commissioners disagree about the import or official applicability of the COVID Guidance, and questions abound as to how it interplays with FDA regulations issued by the U.S. Food and Drug Administration (“FDA”), including Emergency Use Authorizations (“EUA”), as well as EPA regulations on disinfectant products – not to mention how or whether the COVID Guidance impacts the protections afforded by the Public Readiness and Emergency Preparedness Act (the “PREP Act”). But in any case, the guidance unquestionably heightens scrutiny around COVID-related products, and likely will give consumer plaintiffs’ attorneys additional lawsuit fodder – so manufacturers should understand it.

Broadly, the COVID Guidance covers two broad categories of products: face coverings, gowns, gloves (i.e., PPE), and cleaning/disinfectant products.

Face Coverings, Gowns, and Gloves

Under the COVID Guidance, face coverings, gowns, and gloves designed for consumer use are considered “articles of wearing apparel” and therefore must (1) comply with the flammability requirements of the Flammable Fabrics Act; and (2) be tested to either 16 C.F.R. Part 1610 (Standard for the Flammability of Clothing Textiles) or Part 1611 (Standard for the Flammability of Vinyl Plastic Film), depending on the materials used for construction. Further, U.S. manufacturers and importers of these products must issue a General Certificate of Conformity (“GCC”) certifying that these clothing articles meet all applicable requirements.

The COVID Guidance imposes additional requirements for PPE apparel designed specifically for children’s use (i.e., ages 12 and under). Under the Consumer Product Safety Act (“CPSA”), all children’s products must bear permanent tracking information, meet total lead content limits, and meet lead in paint or similar surface coating limits (if either a paint or surface coating is present on the product). Product testing must take place at a CPSC-accepted testing lab, and U.S. manufacturers/importers of these products must also issue a Children’s Product Certificate.

Cleaning Solutions

Household cleaning solutions – for example, hand sanitizers and soaps – are primarily regulated by the FDA, but also fall under the jurisdiction of the CPSC if they constitute a “hazardous substance” under the Federal Hazardous Substances Act (“FHSA”). Generally, the FHSA defines a “hazardous substance” as (1) a substance (or mixture of substances) that may cause substantial personal injury or substantial illness during customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children; and (2) the substance (or mixture of substances) is toxic, corrosive, an irritant, a strong sensitizer, is flammable or combustible, or generates pressure through decomposition, heat, or other means. The FHSA requires that hazardous substances bear prominent warnings on their labels – for example, “KEEP OUT OF REACH OF CHILDREN,” “DANGER”, and “HARMFUL OR FATAL IF SWALLOWED,” among others.

ARTICLE BY Erik K. Swanholt and Nicholas R. Johnson of Foley & Lardner LLP

For more articles on the CPSC, visit the National Law Review Consumer Protection section.

“Jury Trials are Innately Human Experiences.”

Judge Rodney Gilstrap of the US District Court for the Eastern District of Texas as capitulated, postponing his upcoming trials until March. His order includes some interesting commentary in the footnotes.

Of remote proceedings, Judge Gilstrap writes:

This approach, while adequate in a strict sense, allowed the Court to move forward virtually, albeit with regularly unwelcomed losses of audio, video, or both, including unfixable lagtime between audio and video where lips would move. . . lips would stop . . . and sound would follow. The virtual proceedings detracted from the typical administration of justice, depriving the Court of the ability to observe such critical factors as intonation, body-language, attitude, demeanor, and similar vocal and other physical nuance and those quasi-intangibles that normally breathe life and meaning into the written briefing filed on the docket. This approach also unavoidably hampered the Court’s ability to interject questions and have an easy dialogue with counsel. In some instances, virtual proceedings before this Court were infected by the necessarily casual features of home life, such as intrusions of advocates’ spouses, children, and family pets. While such happenings may be an increasing norm of remote work in many contexts, they stand in stark contrast to the formality and solemnity in which Court proceedings traditionally are and must be conducted. Such problems are only magnified in complex proceedings with many moving parts.

On the safety precautions he had put in place for his pandemic trials, Judge Gilstrap writes:

These safety protocols included but were not limited to: taking temperatures of all entrants to court facilities; requiring masks and in some cases gloves; installing industrial air filtration devices in courtrooms; spacing in-person lawyers, parties, witnesses and jurors; installing plexiglass barriers around witness stands, jury boxes and elsewhere; limiting the number of participants physically present in court; periodic and repeated deep cleaning of jury rooms, restrooms and other common facilities; written questionnaires to venire members regarding their personal circumstances related to the virus sent and answered prior to their appearance; sequestering of jurors and providing individualized meals during trials to avoid exposure within communities during lunch breaks; and myriad other measures.

For Judge Gilstrap, remote trials are not a viable solution. He writes: “While some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments.” Then comes this footnote:

Jury trials are innately human experiences. More is often communicated in a courtroom non-verbally than verbally. Such a human experience must allow for the look and feel of direct human interaction. Such factors as cadence, tone, inflection, delivery, and facial expression are as vital to due process as is the applicable statute or case law. When Daniel Webster argued the Dartmouth College case, John Marshall cried from the bench. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). Our history is replete with such examples of the humanity engrained in the American jury trial. This Court is persuaded that the remote, sterile, and disjointed reality of virtual proceedings cannot at present replicate the totality of human experience embodied in and required by our Sixth and Seventh Amendments.

ARTICLE BY McDermott Will & Emery

For more articles on jury trials, visit the National Law Review Litigation / Trial Practice section.

The Boeing 737 MAX is Back – What is the Impact for Manufacturers?

It is hard to move the news cycle beyond vaccine updates, but this week brought such news. The aerospace industry received the announcement that many were expecting for a long time. The FAA has decided to allow Boeing to resume deliveries and commercial flights of the 737 MAX by the end of the year.

What is the impact? From an aerospace supply chain perspective, the distribution of a vaccine and the 737 MAX are connected because they each relate to the eventual return of people getting on airplanes, both for business and personal reasons. From a long-term perspective, the fundamentals of the aerospace industry remain solid and there will be a recovery.

However, I have heard some in the media and in the manufacturing industry try to suggest that the return of the 737 MAX will fix the problems in the industry in the short term.

I agree with many of the reactions set forth in a recent article published by Reuters, which attempts to “pump the brakes” on the immediate impact of the 737 MAX. Industry leaders such as Kevin Michaels and Richard Aboulafia underscore the stark reality.

Aboulafia states:

“The market really won’t need new-build planes for a few years, since there are 387 737 MAX’s waiting to return to service, and 450 already-built 737 MAX’s waiting to be delivered.”

Michaels concurs:

“This is great news but . . . It will take several years (for the 737 MAX supply chain) to get back to full production, maybe as many as three years.”

At the end of the day, the return of the 737 MAX is good news in the long-term for Boeing and for the aerospace supply chain. But, the short term challenges remain, as Boeing and Airbus expect that their suppliers will use this time of relatively-low demand in commercial airspace to invest in their businesses. Easier said than done.

ARTICLE BY Jeffrey J. White of Robinson & Cole LLP

For more articles on the Boeing 737 MAX, visit the National Law Review Antitrust & Trade Regulation section.

How Long Until Biden Nominates the MARAD Administrator?

As President-elect Biden begins assembling his new team, personnel decisions play an important role in what the next four years will look like for the maritime industry. As speculation begins to mount, a question we see regularly is how long it will take for the president to appoint a new head of the U.S. Maritime Administration (MARAD).

The short answer is not any time soon. If past is prologue, it will be many months before a new administrator is confirmed. In the chart below, we detail the nomination and confirmation timelines of the last six MARAD administrators during the first term of an incoming president:

Admiral Mark Buzby had the fastest confirmation in recent history, despite having to wait nearly nine months after the 2016 election to take command at MARAD.

The longest wait for a MARAD Administrator occurred during the first term of the Obama presidency. David Matsuda was formally nominated to the post more than a year after the 2008 election, and in the end wouldn’t be confirmed until nearly 600 days after the election.

It should be noted, that in addition to those listed, several MARAD administrators have navigated the nomination process in the second term of a presidency; including Paul “Chip” Jaenichen (2014), Sean Connaughton (2006), Clyde Hart (1998), and John Gaughan (1985).

The new MARAD administrator will have big shoes to fill in replacing Admiral Buzby, but despite a slow-developing process, the agencies maintain order and continuity at the staff level from top to bottom. But if history holds, don’t expect a rapid transition at MARAD.

ARTICLE BY Mark Ruge and Brody Garland of K&L Gates

For more articles on maritime law, visit the National Law Review Government Contracts, Maritime & Military Law section.

Beltway Buzz: 2021 Labor and Employment Forecast

The results of the 2020 national elections are (mostly) in. Former vice president Joseph Biden is now President-elect Joseph Biden. Democrats have managed to hold the U.S. House of Representatives, but they will be working with the slimmest House majority in years. Control of the U.S. Senate is still not known at this time, though Republicans enjoy a 50–48 majority as we await two runoff elections in Georgia scheduled for January 5, 2021. If Democrats win both of those races, they will seize control of the upper chamber, as the vice president (who under the Constitution of the United States also serves as president of the Senate) can provide a tie-breaking vote in the event of a 50–50 deadlock. Any other outcome in Georgia will tilt the Senate balance in favor of Senator Mitch McConnell (R-KY) and the Republicans.

While the results of the congressional elections may put a damper on a robust Democratic legislative reform agenda, the Biden presidency will still bring a dramatic shift to the federal labor and employment policy landscape. The 180-degree turn in regulatory employment policy priorities that will likely result will undoubtedly create uncertainty for employers, which are already dealing with a pandemic and an unstable economy. Set forth below are the major labor and employment policy changes to anticipate for 2021.

I. Executive Actions

The quickest and easiest way for newly sworn-in President Joe Biden to initiate policy changes will be by rescinding certain executive orders issued by then former president Donald Trump and issuing his own executive orders. Revoking myriad Trump executive actions relating to immigration will top the list, including those relating to refugees and asylees, certain COVID-19–related travel restrictions, and the ban on certain nonimmigrant visas (Presidential Proclamation 10052 of June 22, 2020). In turn, Biden is likely to reinstitute the Deferred Action for Childhood Arrivals (DACA) program, as well as the temporary protected status of certain eligible nationals.

In the employment law space, Biden is expected to revoke President Trump’s Executive Order on Combating Race and Sex Stereotyping, which is opposed by civil rights groups and members of the business community. It is very possible Biden may follow this action with a proactive requirement on federal contractors to require diversity and inclusion or implicit bias training and programs. Additionally, Biden may also attempt to resuscitate a version of former president Barack Obama’s Fair Pay and Safe Workplaces executive order.

II. Congress: A More Modest Agenda

Leading up the election, there was much speculation regarding whether the Democrats would abandon the legislative filibuster in the event that they took control of the Senate. Such a move would allow senators to pass legislation with a simple majority vote (51 votes), rather than the 60-vote threshold that is currently required. Eliminating the filibuster would be a monumental and historic change to the way bills are drafted and passed in Congress. In this scenario, a Senate without the filibuster would enable Democrats to expand the number of seats on the Supreme Court of the United States and to pass legislation dealing with the COVID-19 crisis, voting rights, gun control, climate action, LGBTQ rights, and more.

The elections and political aftermath, however, have created a situation in which the filibuster will more than likely survive. At best, the Democrats would have 50 senators in 2021. A tiebreaking vote by a Vice President Kamala Harris would, therefore, appear to give the Democrats the necessary votes to scrap the filibuster, but Senator Joe Manchin (D-WV) has already stated that he will not vote to eliminate the filibuster, and others in the Senate Democratic Caucus have expressed similar concerns. Thus, with the filibuster likely remaining intact, Republicans will be better able to thwart the Democrats’ legislative efforts, even if the Democrats win both Senate races in Georgia. Similarly, if Republicans prevail in one or both of the Georgia races, Senate Democrats will be able to filibuster Republican bills. (The White House and House of Representatives would also obviously work as a check on the Senate.)

A. Potential Employment-Related Legislation

Of course, this is not to say that the chances of employment-related legislation being enacted are nil. If the political winds blow in just the right way, there is a possibility that one or some of the following bills could be enacted into law.

COVID-19/Economic Relief. As cases of COVID-19 continue to surge and state governments consider reinstituting more lockdown restrictions, there will be continued pressure on Congress to pass an economic stimulus package. Republicans and Democrats are in agreement about the need for funding to combat the virus (e.g., money for vaccines, testing, etc.), assist schools and childcare providers, and provide for a certain amount of expanded unemployment insurance. Like everything else in Congress, however, the devil is in the details regarding particular issues. More polarizing are the Republicans’ demand for liability protections from COVID-19–related lawsuits, as well as the Democrats’ demand for language requiring the Occupational Safety and Health Administration (OSHA) to develop a COVID-19–specific emergency temporary standard. It is unclear whether either side is willing to compromise on these issues.

Pregnancy Accommodation. The proposed Pregnant Workers Fairness Act (H.R. 2694) would clarify protections for pregnant workers under federal discrimination laws and would require employers to provide reasonable accommodation—such as more frequent restroom or water breaks—to those employees. The bill passed the House of Representatives in September 2020 by a vote of 329–73 (including 103 Republicans) and enjoys the support of the business community.

Paid Leave. The political debate surrounding federal paid family/sick leave legislation has evolved dramatically over the last several years. While Democrats have long supported such legislation, Republicans have only recently started to come on board with the concept (though they still have concerns about cost, scope, the need for preemption, etc.). Three recent developments have pushed the debate forward: (1) the increasing patchwork of state and local paid leave law requirements, (2) the new paid family leave benefit for federal government employees beginning in 2021, and (3) the paid family and sick leave provisions of the Families First Coronavirus Response Act (FFCRA) that provided a glimpse of a national requirement. Legislation in 2021 will remain a challenge, but the parties are inching—perhaps incrementally—closer.

Multiemployer Pension Fix. It is getting harder and harder for legislators to keep kicking the can down the road with respect to the multiemployer pension crisis. Accordingly, there is some bipartisanship on this matter in that there is recognition by both parties of the problem. Some combination of premium increases and loans is the compromise position. There could be some action on this issue during the lame-duck session of Congress following the elections, but it could also slip to 2021.

Immigration. On July 10, 2019, the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) by an overwhelming vote of 365–65. The bill would eliminate the 7 percent per-country cap for employment-based immigrant visas. Proponents of the bill have so far been unsuccessful in passing the bill in the Senate via unanimous consent.

B. Employment-Related Activity in the U.S. House of Representatives

Though their majority will be slim, House Democrats will likely reintroduce and seek to advance multiple employment-related bills in 2021. In response, Republicans and the business community will try to peel off a number of Democrats to spoil any potential floor votes. Expect action on the following issues:

COVID-19/Economic Relief. If negotiations break down on a bipartisan economic stimulus, Democrats in the House will likely proceed on their own and move on the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, which passed the House of Representatives twice in 2020. Among other provisions, the HEROES Act would:

extend Pandemic Unemployment Assistance (for those workers who do not traditionally qualify for unemployment insurance (UI), such as independent contractors); Pandemic Extended Unemployment Compensation (providing an additional 13 weeks of benefits); and the Federal Pandemic Unemployment Compensation (FPUC) program, which provides displaced workers with $600 per week on top of their weekly UI benefits;
require OSHA to issue an emergency temporary standard for certain at-risk industries; and
extend the FFCRA emergency family and sick leave provisions for the remainder of 2021 and apply them to all employers, regardless of size.

Protecting the Right to Organize (Pro) Act. The Protecting the Right to Organize Act passed the House of Representatives in early 2020. It will be the top labor policy priority for congressional Democrats. The bill would:

codify Browning-Ferris Industries (joint employer);
codify Specialty Healthcare (gerrymandered units);
codify Purple Communications (email access);
codify the 2014 “ambush” election rules;
codify the 2016 “persuader regulation”;
prohibit right-to-work laws;
provide for “stealth” card check;
codify California’s controversial AB 5 on independent contractors into the National Labor Relations Act (NLRA);
provide a private cause of action for unfair labor practices (ULPs);
restore and codify the Board’s failed “notice posting” requirement;
allow for new civil penalties, including liquidated damages;
require binding arbitration for first contracts;
overturn the Supreme Court of the United States’ decision in Epic Systems, effectively prohibiting employment arbitration agreements;
prohibit employers from permanently replacing strikers; and
allow for secondary boycotts.

Worker Flexibility and Small Business Protection Act. Introduced in Congress in September 2020, this bill has not yet gone through the legislative vetting that the PRO Act has. But the bill could quickly draw the attention of congressional Democrats, as it dramatically amends federal employment laws, with a particular focus on independent contractors and temporary workers. The bill would:

codify California’s “ABC test” for independent contractors as part of most federal labor and employment laws;
greatly expand joint-employer tests throughout labor and employment laws, and extend liability to certain owners, officers, and shareholders;
create a “standalone violation” for incorrectly classifying a worker as an independent contractor, rather than an employee;
set unique wage and hour standards for certain “transportation and network dispatching workers”;
require temporary employees to be paid the same as “direct” employees and require that temporary employees be converted to “direct” employees after one year of service;
amend the Fair Labor Standards Act (FLSA) to include a “private attorneys general” provision;
require an employer with 100 or more employees to file with the U.S. Department of Labor (DOL) a “supply chain responsibility plan” describing its processes for ensuring that its suppliers and vendors do not violate labor and employment laws in the United States and abroad; and
require an employer to publicly post on its website and main entryways its labor and employment law compliance record and “rating” over the last three years, including through the use of emojis.

Paycheck Fairness Act. Among other provisions, the Paycheck Fairness Act would amend the Equal Pay Act of 1963 by replacing the “factor other than sex” defense with a “bona fide factor” defense that must be “job-related” and “consistent with business necessity”; would provide for uncapped compensatory and punitive damages; would require the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) to develop mechanisms for the collection of employee compensation data from employers; and would enact prohibitions on the use of, or inquiry into, applicants’ pay history.

Immigration. The last time Democrats controlled the Senate they passed bipartisan comprehensive immigration reform. Biden has vowed to take another crack at this and promises that he will “commit significant political capital to finally deliver legislative immigration reform.” It is also possible that Democrats will focus on targeted relief measures for Dreamers and/or temporary protected status (TPS) recipients.

Raising the Minimum Wage. The House passed the Raise the Wage Act in 2019. The bill would gradually increase the federal minimum wage over a six-year period to $15 per hour. The bill also indexes the minimum wage to inflation and would phase out the separate minimum wage for tipped employees. While a long shot—especially if the COVID-19 pandemic continues and the economy remains on shaky grounds—it is possible that Senate Republicans would be willing to cut a deal if the terms and legislative package were right.

III. U.S. Department of Labor

A. Who Will Be in Charge?

There is a saying in Washington, D.C., that “personnel is policy.” Whomever Biden nominates to run the various labor and employment related agencies will have an enormous influence on federal labor and employment policy. Democrats may have learned a lesson from former president Obama’s appointment of Congresswoman Hilda Solis to helm the DOL during his first term. Solis did not come into the job with much labor and employment experience and did not advance Democrats’ agenda as quickly as they would have liked. Indeed, the DOL’s regulatory machine really did not hit its stride until former president Obama’s second term, when Thomas Perez became secretary of labor. Thus, look for Biden to appoint a secretary of labor who is aggressive, savvy, and experienced.

The process of taking over functions at the DOL has already begun. Biden announced his “agency review teams” to begin evaluating agency operations in anticipation of the shift in executive power in January 2021. The labor review team (overseeing the DOL, the National Labor Relations Board, and the EEOC, among other agencies) includes many familiar faces from the Obama administration. Individuals such as Jenny Yang (former EEOC chair), Seth Harris (former DOL deputy secretary and acting secretary of labor), and Patricia Smith (former DOL solicitor) will likely join others from organized labor, academia, and progressive think tanks in beginning the initial overhaul of the DOL. This group will likely influence the selection of Biden’s DOL nominees and may even be candidates themselves.

Expect the DOL of the Biden administration to be aggressive from the start, in terms of both regulatory actions and enforcement proceedings. Clawing back some of the initiatives of the DOL of the Trump administration will, of course, be a priority. But beyond that, expect this DOL to go on the offensive with an agenda that is even more progressive than that of the Obama administration’s DOL.

B. Occupational Safety and Health Administration

The ongoing COVID-19 pandemic has thrust OSHA into the spotlight, and workplace safety will likely be the priority of the Biden DOL. First and foremost, this likely means quickly putting forward a nominee to be assistant secretary of labor for occupational safety and health. Additionally, expect OSHA to begin developing a COVID-19–specific emergency temporary standard right away. Enforcement is likely to tick up, too, especially with regard to COVID-19–related complaints. Finally, while it was not abandoned entirely by the current OSHA, a Biden OSHA can be expected to return to a much more aggressive “regulation by shaming” campaign through the use of conclusory press releases.

C. Wage and Hour Division

In addition to an aggressive enforcement strategy, the Wage and Hour Division (WHD) of the DOL will undoubtedly pursue a robust regulatory agenda that could potentially be described as “repeal and replace.” The agenda will likely include the following initiatives:

Joint Employer. The Trump DOL’s joint-employer regulation under the Fair Labor Standards Act has been enjoined by a federal court. Whatever the legal status of the regulation, a Biden DOL is expected to “repeal and replace” the rule with a broader and more amorphous joint-employer standard.
Independent Contractor. Similarly, if the Trump administration finalizes an independent contractor regulation, it will quickly be targeted for reversal. Senate Democrats may try to repeal it by using the Congressional Review Act (though they are unlikely to have the votes and doing so would severely limit Democrats’ ability to promulgate their own version of an independent contractor regulation). If Congress does not act, the incoming administration will rescind the regulation via rulemaking. The Biden DOL may then proceed to issue its own version of an independent contractor standard, but the controversy surrounding AB 5 in California may give them pause.
Overtime. A federal court ruling in late 2016 blocked the enactment of the Obama administration’s overtime rule. Although the Trump DOL finalized its own overtime rule in September 2019 that increased the salary basis threshold, the level probably will not satisfy a Biden DOL, which most likely will want it to be at $47,000 or higher and may also look to make changes to the duties test.
Opinion Letters. Opinion letters offer a way for stakeholders to seek assistance from the DOL when confronted with difficult questions as to the application of federal wage and hour law. In 2010, the Obama administration ended the opinion letter process in favor of sweeping Administrator’s Interpretations. The opinion letter program was reinstated in the current administration, but may be jettisoned in a Biden DOL.
PAID Program. A Biden WHD can be expected to do away with the Payroll Audit Independent Determination (PAID) program that encourages employers to self-report wage and hour violations.

D. Office of Federal Contract Compliance Programs

In 2019, OFCCP hauled in a record-breaking $40 million plus in legal settlements with federal contractors. That figure does not tell the whole story of the OFCCP in the Trump administration, but is indicative of an aggressive enforcement philosophy that carried over from the Obama administration (despite welcome efforts towards compliance assistance and transparency). Expect a Biden OFCCP to push this enforcement posture even further, particularly when it comes to alleged compensation discrimination (though whoever is running OFCCP in 2021 will have to work around a 2020 high profile ruling against OFCCP that calls into question the agency’s statistical analyses).

Additionally, OFCCP will likely pursue the following changes:

Roll back policies and processes established pursuant to President Trump’s Executive Order on Combating Race and Sex Stereotyping.
Implement affirmative diversity and inclusion obligations pursuant to a potential executive order.
Rescind any regulation relating to religious organizations with federal contracts.
Restart the 2014 compensation data collection tool proposal. This regulation never got off the ground and was overtaken by the 2016 wage and hour data collection changes to the EEO-1 form. In part because the EEOC will have a Republican majority through at least mid-2022, OFCCP may seek to revive this proposal.

IV. National Labor Relations Board

Republicans will maintain a majority at the NLRB at least into the summer of 2021, though Democratic member Lauren McFerran will assuredly be named chair in early 2021. She could look to slow down the issuance of case decisions, and especially rulemakings, until reinforcements arrive. Of course, if Republicans retain a majority in the Senate, Majority Leader Mitch McConnell will have a say in who gets confirmed to the Board and when.

Once Democrats gain a majority on the Board, it will come as no surprise that they may seek to roll back current Board policies and return to policies that favor unions. Assuming that Congress fails to enact the PRO Act, a Board with Democrats in the majority may attempt to enact the legislation administratively, where possible. Other action items for a Democrat-controlled NLRB include:

Joint Employer. In February 2020, the Board issued a final rule that reestablished the direct and immediate control standard that existed for decades prior to the 2015 Browning-Ferris Industries (BFI) A new Board can be expected to undo this rule and issue its own rule that cements BFI via regulation.
Election Procedures. A new Board may look to restore all elements of the “ambush” election rules that went into effect in 2015 but which were amended in 2019.
Employee Choice Regulations. A new Board will reverse 2020 final rule changes to the Board’s standards on blocking charges, voluntary recognition, and Section 9(a) bargaining relationships in the construction industry.
Other Changes. Over time, expect a Board dominated by Democrats to address the following issues via case law or regulation:
- Fractured bargaining units (Specialty Healthcare)
- Employee use of email (Purple Communications)
- Independent contractors
- Graduate students
- Contract bar
- Secondary activity
- Employee discipline
- Dues checkoff
- Arbitration deferral

V. Equal Employment Opportunity Commission

Recent appointments to the EEOC will give the Commission a Republican majority through at least mid-2022. Further, Republican-appointed general counsel, Sharon Fast Gustafson, will remain in office until 2023. But as with his likely selection of an NLRB chair, Biden can be expected to name a Democratic commissioner (likely Charlotte Burrows) as the chair. In this scenario, Burrows will control the agenda, meaning that the EEOC will try to finalize a conciliation regulation prior to January 20, 2021. Further, the odd dynamic of having a chair who is in the minority will undoubtedly influence, and likely delay, the Commission’s position on a pending National Academy of Sciences analysis of EEO-1 pay and hours worked data, as well as the development of a rule on employer-sponsored wellness programs.

Of course, in Democratic hands, the Commission can be expected to explore ways to collect compensation data from employers. Additionally, a Commission with Democrats in the majority could revoke a September 2020 opinion letter clarifying EEOC’s interpretation and enforcement of “pattern or practice” litigation under § 707(a) of Title VII of the Civil Rights Act of 1964. 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.

VI. Immigration

Chances are that a Biden presidency will be friendlier to business immigration needs than the current administration, but this does not mean that there won’t be any challenges for employers that supplement their work forces with high-skilled foreign labor. Biden has a populist/protectionist streak and his campaign website states the following:

Biden will work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages. Then, Biden will support expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create unacceptably long backlogs.

Thus, employers should not expect all scrutiny of the high-skilled nonimmigrant visa programs to disappear with a Biden victory. That being said, expect a Biden administration to:

restore DACA and TPS programs;
reaffirm the rule allowing employment authorization for certain H-4 spouses of H-1B nonimmigrants;
rescind (or not defend) the U.S. Department of Homeland Security’s rule on Strengthening the H-1B Nonimmigrant Visa Classification Program and accompanying DOL wage rule;
rescind the Inadmissibility on Public Charge Grounds final rule;
evaluate and possibly rescind current travel bans, although the COVID-19 travel bans may take time to rescind as the situation evolves;
rescind the proposed “duration of status” rule for nonimmigrant academic students, exchange visitors, and representatives of foreign information media; and
rescind the proposed rule on the collection and use of biometric data in the enforcement and administration of immigration laws.

ARTICLE BY James J. Plunkett of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more articles on labor law, visit the National Law Review Labor & Employment section.

Maintaining Workplace Civility in an Era of Heightened Divide

Do as adversaries do in law, strive mightily, but eat and drink as friends.

William Shakespeare, The Taming of the Shrew, Act I, sc. 2

In the aftermath of the historic and divisive election, many of us welcome an end to the besiegement of ads, media commentaries, Facebook and Twitter postings, etc. that are not only uncivil, but in many cases just plain nasty.

The political climate of brinkmanship, rudeness, and lack of cooperation (let alone collaboration) appears to be increasingly reflected in the workplace. Collectively these behaviors are called “incivility,” and have become so prevalent that many scholarly studies have been conducted on the topic. Google “incivility in the workplace” or visit the Society for Human Resources Management (SHRM) website and you’ll get the idea.

What is “civil” and “uncivil” behavior in the workplace, and what are the legal and other implications of uncivil behavior?

“Civility” is a collection of positive behaviors that promote courtesy and respect. The word has its origins in the Latin word “civis,” which in Latin means citizen. Keith Bybee, the author of How Civility Works, put it this way in a 2019 NPR interview: “Civility is the baseline of respect that we owe one another in public life.”

To paraphrase the old Irish proverb by substituting “civility” for “diplomacy”, “Civility is telling someone to go to hell in such a way that they will look forward to the trip.”

On the flipside, what is “incivility”? One study describes it as “a low intensity deviant behavior with ambiguous intent to harm” (Anderson and Pearson, 1999). Other studies define it more thoroughly as bad or rude behavior, with diminished use of basic courtesies such as “please” and “thank you,” abrupt and curt language, especially when using technological communication, a lack of respect for leaders and colleagues, with behaviors including belittling, interrupting or ignoring others, spreading rumors or gossip, and sending “nasty grams” to co-workers. (Akella and Johnson, 2018, citing many other studies.)

Many employees appear to be under the impression that they have an absolute First Amendment right to say or send whatever they want to in the workplace. This is simply not true, especially in the private sector. Employers have the right and under some circumstances the duty to expect their employees to act toward one another with basic respect and courtesy. Unfortunately, email and social media have removed many of the “filters” that were previously in place in terms of the lack of ability to make an immediate and often not thought-out response, and that unfortunately has bled over to in-person communications. There are now unlimited opportunities for knee-jerk reactions that are not thought through before hitting the SEND button.

SHRM and other reputable sources report that numerous studies show that incivility in the workplace leads to lower production, higher turnover, lower profitability, poorer customer service and decreased morale.

So how might employers rein in on such behavior in the interest of maintaining a desirable workplace culture and mitigating liability? Some employers have addressed the problem of incivility by instituting Codes of Conduct designed to advise employees what is expected of them in terms of their interactions with one another. Of course, such Codes are not worth the space they take up on a network unless they are accompanied by commitment from leadership to communicate, train and enforce the Codes, and truly reflect the mores and values of the organization. Ideally, supervisors, who after all are responsible for enforcing Codes of Conduct on the “front lines”, should be involved in their creation and in all cases should be thoroughly trained regarding their contents and what to do in the event of a violation.

Codes of Conduct sometimes include other matters such as conflict of interest, gifts and gratuities, and use of Company resource policies, and are generally enforced through the Company’s disciplinary procedures.

From a legal standpoint, incivility is not generally regarded as in and of itself constituting illegal harassment or illegal conduct under discrimination laws, although it could and should be regarded as behavior which could easily escalate to that level if unchecked.

The coming days and weeks will tell us a lot about how people handle the inevitable fallout from the election, and of course a lot of that conversation will occur at the workplace. It’s important, even vital, to workplace harmony and even more important, to the fiber of who we are as a civilized nation to have those conversations in an atmosphere of mutual respect.

ARTICLE BY Bruce B. Deadman of Davis|Kuelthau, s.c.

For more articles on the workplace, visit the National Law Review Labor & Employment

How to Maintain a Positive Company Culture During COVID-19

Culture eats strategy for breakfast, or so we’ve been told by Mr. Drucker and others.

Coincidentally, I wholeheartedly agree. So, how does leadership maintain, let alone improve, its company culture in the face of the first pandemic of its size in the last one-hundred-plus years?

Of course, it will not be a one-size-fits-all approach, but the following are three suggestions I have seen work recently for several of our clients.

Suggestion 1 – Maintain Visible and Engaged Company Leadership

“I always feel like somebody’s watching me” – Rockwell 1984

Admit it, this song is now stuck in your head (you’re welcome!). It seems that employees are paying closer attention to company management than ever before. How you communicate, your style of communication, transparency, consistency, accessibility, and responsiveness (even if only remotely) – it all matters. What matters most in my humble opinion, however, is that you deliver all information in a timely and authentic way. Being prompt in sharing good or bad news will be especially appreciated now. And if you have more than one bad piece of news to share, share it all at once, and now. Also, be yourself. By way of example, if you don’t normally try to establish witty repartee, now is not the time to try. Your employees should already know who you are if you have done your job. Now is not the time to try and introduce them to someone “new” (even with the best of intentions), but instead is a great time for stability and to remind them why they have hopefully bought into and trusted your leadership style so far.

Suggestion 2 – Provide Opportunities to Interact and Contribute as Individuals

During the pandemic, even those more introverted employees have felt isolated. A feeling of company connection goes a long way towards building loyalty, teamwork, and happy employees. And even though we are all interacting with our customers and clients more virtually now, those folks get it when your employees genuinely enjoy each other’s company. So, what are we to do when we have been advised by the CDC to limit our group gatherings, and stand six feet apart, wearing masks – and many of our workforces are still working one hundred percent remotely from home?

Some of our clients have virtual Zoom lunches or happy hours. Some have encouraged employees to start book clubs or movie clubs and discuss the materials via Zoom. But ultimately, it is imperative that the tenured employees who get the company culture in our various geographic locations are empowered to lead by example, and given the freedom to illustrate the company’s culture in the way they believe will be most effective.

Suggestion 3 – Fight Against “Checking the Box”/Staleness

This one is tricky. Most of our clients spent a fair amount of time earlier this year coming up with ways to effectively address Suggestion 1 and Suggestion 2. But over time, there is definitely a routine, we get comfortable, and inertia sets in. Don’t be afraid to shake things up! While we all have some level of Zoom fatigue now, there is no magic number to try and hit per week or month. Likewise, if every company management communication looks identical background and content-wise (it’s now 10:15 and time for our HR Director to present x, y, or z) and is so predictable that each communication could have just been batch recorded and sent out, things should be adjusted.

Ultimately, we will get through this, and while mention of the number 2020 may produce a zeitgeist-like gag reflex for most of us for a long time to come, for now, work-wise all we have is your own company’s culture and co-workers. Protect it and each other.

ARTICLE BY William A. Oden, III of Ward and Smith, P.A.

For more articles on company culture, visit the National Law Review Labor & Employment section.

Transition 2020 | Defense and National Security Policy Under the Incoming Biden Administration

Both major change and desired continuity can be expected.

Beginning with perhaps the most historically significant change we expect to see in President-elect Biden’s defense and national security organizations, we believe that the Nation will see the first female serving as the Secretary of Defense. Given the number of highly-qualified women who are on the short-list of nominees, with former Obama-era Undersecretary of Defense for Policy Michele Flournoy, former Secretary of the Air Force Deborah Lee James, former National Security Advisor Susan Rice and U.S. Senator Tammy Duckworth (D-WA) reportedly on that list, the probablity is significant that the Biden Administration will bring us the first woman serving in that cabinet post.

As to the defense budget, after three years of increasing Pentagon budgets but despite the exploding federal debt and deficit resulting from the need to manage the COVID-19 pandemic, we do not expect a significant change in overall defense spending under President-elect Biden in the short term. The incoming Biden Administration has essentially stipulated that geopolitical threats have become more challenging or uncertain so as to make major cuts in the near term unwise. Just over the last few weeks, North Korea has reportedly made headway in developing its submarine-launched strategic nuclear ballistic missile capability. And, after Washington asked China to close its consulate in Houston and Beijing retaliated by shuttering the US consulate in Chengdu, China continues to take an aggressive territorial posture in the South China Sea. Cutting defense will be even tougher if the Senate remains in the hands of the Republicans and with the reduced Democratic majority in the House.

Over the intermediate to long term, however, we expect that the pressure the progressive wing of the Democratic Party will bring to bear to reduce defense spending, will be considerable. Interestingly, this could be a replay of the post-end of the Soviet Union period in the early 1990s, when Progressive Democrats and Republican deficit hawks aligned to pursue the so-called Peace Dividend. While the geopolitics of this moment are vastly different, the swollen deficit as the result of emergency pandemic spending could once again align political opponents.

Nonetheless, we expect a Biden Pentagon to take a hard, realistic look at extracting savings and efficiencies from how the Department of Defense does business. This is particularly likely if former Obama-era Deputy Chief Management Officer Peter Levine, who also performed the duties of the Undersecretary of Defense for Personnel and Readiness, serves in a position of responsibility. Everything from the Department’s back-office operations to its major weapon systems programs will be on the table. Under such a review, both retiring legacy systems in favor of new technology solutions, and cancelling acquisition programs still in early development and without a congressional constituency or those that do not help the U.S. prepare for great power competition with Russia and China, would be fair game. Interestingly, the desire to look at legacy systems in this context—a not uncontroversial proposition—was originally identified by the House Armed Services Committee’s bipartisan Future of Defense Task Force 2020. This appears to suggest that, triangulating with a Biden national security apparatus, the defense and national security policy center of gravity on the Hill may shift discernably to that Committee under Chairman Adam Smith, from the Senate.

Furthermore, we believe that defense acquisition and contracting management in a Biden Pentagon, will continue to support commercial procurement policy and regulations, especially those that engender access and cooperation with the national security innovation base. Especially if Obama-era acquisitions chief Frank Kendall; former Undersecretary of Defense for Personnel and Readiness Alan Esteves; or Pentagon senior executive (and current CSIS director) Andrew Hunter, are appointed to relevant positions of responsibility, we expect that the Biden Administration will continue seeing as a priority expanding the Pentagon’s access to technologies being developed by commercial and non-traditional defense companies, which do not depend on the Department’s cost-plus research and development funding for their leap-ahead advancements.

In one area, there is certainty of discontinuity—a Biden Administration will cease major defense funding for the completion of Trump’s border wall. While congressional Democrats might be open to approving modest funding for the repair and upkeep of border walls and fencing, they will likely insist (and President-elect Biden will likely agree) to end funding for the hundreds of additional miles of wall that Trump made a top issue during his 2016 campaign and throughout his presidency.

Over the last few weeks, President Trump has clearly leaned-in in trying to score some foreign policy wins, particularly regarding troop deployments and treaty negotiations, in the run-up to Election Day. This highlights an important distinction in the approach each principal has/will continue to take to defense and national security policy. Biden will take to these issues an articulable worldview, grounded in the National Security Strategy and the analyses that derive from it. In the execution of that view, we will likely see the restored use of traditional diplomatic tradecraft. This will be especially true if we see others (including some Republicans) mentioned for relevant senior positions of responsibility in a Biden Pentagon, State Department or National Security Council, including former Deputy Secretary of State Anthony Blinken; Ambassador Nicholas Burns; Clinton-era Secretary of the Navy Richard Danzig; Kori Schake with the American Enterprise Institute; former Secretary of State Clinton’s Deputy Chief of Staff and National Security Advisor to then-Vice President Biden Jake Sullivan; Obama-era Undersecretary of Defense for Policy Christine Wormuth; former Principal Deputy Undersecretary of Defense for Policy Kathleen Hicks, or Richard Fontaine, CEO of the Center for New American Studies, are in fact appointed. The Administration’s support for, and leveraging of, international institutions and valued alliances will likely make Biden’s national security policy positions (even if one disagrees with them per se) engender comity, stability and predictability—so important to the maintenance of the international political economy.

Against this backdrop, we expect that President-elect Biden will call for an immediate extension of the New START Treaty with Russia, as the current treaty expires about a month after he assumes office. Moreover, given the dearth of analysis supporting Trump’s proposed withdrawal of troops from Germany, we expect that Biden will order a pause of those plans to review their costs and military benefits. Also, depending if the Taliban ceases recent hostilities and meaningfully resume negotiations, Biden may suspend major troop movements out of Afghanistan, as well.

Also, having withdrawn from the Cold War-era Intermediate-Range Nuclear Forces Treaty, the Trump Administration has moved ahead with plans to develop a nuclear variant of its submarine-launched conventional Tomahawk cruise missile as a deterrent to Russia. However, as arms-control advocates have highlighted that nuclear-tipped cruise missiles can be especially destabilizing inasmuch as they cannot be distinguished from their conventional cruise missiles versions, we expect that President-elect Biden will put that program on hold.

Finally, on denuclearization, we expect that President-elect Biden will have the U.S. re-enter the Joint Comprehensive Plan of Action (JCPOA) if Iran returns to compliance and will try negotiating with North Korea. The key difference from President Trump’s approach would be that in seeking to rein in North Korea’s ambitions the Biden Administration will involve other allies and partners, including South Korea, Japan, and China.

On climate change policy as it relates to defense and national security, we expect a significant change in rhetoric between what we have seen from President Trump and can expect from President-elect Biden. We say this because, while Trump has conveyed considerable skepticism about climate change, the Pentagon under his Administration has sought and supported efforts, including funding, needed to address the Department’s “energy and climate resilience” operational requirements. That trend line will continue under the Biden Administration. But, we expect that the Biden Administration’s rhetoric on this issue will underscore the need to prepare and protect bases from floods, storms and energy supply disruptions arguably caused by climate change more vividly and cite that risk in support of Biden’s broader policy priority on combating climate change.

By far the most significant area of policy continuity between the two Administrations will be the recognition that, while the US emerged from the Cold War with a substantial military lead over any potential rival, the US has not kept pace with China’s and Russia’s military modernization. The Biden Administration will share the Trump Administration’s understanding of China as the United States’ foremost strategic competitor and the need to prepare for great power competition, as prescribed under the most recent National Defense Strategy. While Russia’s strategic nuclear capability and its continuing efforts to undermine democracy worldwide makes it a more immediate national security threat to the US than China, systemic economic factors, if left uncorrected, will likely have Russia recede as a global power over the long run. However, as the ODNI has observed, China and Russia are more strategically aligned today than at any other time since the 1950s.

With this in mind, we expect to see the Biden Administration continue pursuing, if not expanding, the whole-of-government approach that the Trump Administration has taken to circumscribing Chinese global dominance and Russian malign activity—particularly in the area of technology and innovation, as advancements in artificial intelligence (AI)/machine learning (ML), biotech, quantum and advanced computing, space tech and cybersecurity, among others, are making traditional battlefields increasingly irrelevant. Specifically, we expect to continue seeing the combined and enhanced use of various economic instruments of national power, including, trade (sanctions) policy; export controls; post-FIRRMA CFIUS; access to capital (especially to commercial technology startups and technology research institutions); economic development assistance; export financing assistance; policies intended to address supply chain management risk (particularly cybersecurity risk); insourcing initiatives, including domestic content preferences, etc., to address this policy imperative. A review of not only the incoming Administration’s policy papers but also the composition of its landing team make clear that a Biden national security apparatus will share the Trump Administration’s appreciation of the US homeland’s vulnerability to adversaries improving their ability to wage cyberwarfare against civilian infrastructure, financial institutions, and healthcare facilities and the need to prioritize relevant defense capabilities within both the Department of Defense and the private sector.

Another major policy area of continuity will be the Trump Administration’s insourcing initiative, which both Administrations believe will be necessary to support the U.S. manufacturing base in vitally important economic sectors such as microelectronics. Also continuing, if not strengthening, will be measures that started under President Obama’s Secretary of Defense Dr. Ash Carter, but carried forward in earnest by the current Administration, to support and harvest for military use commercially developed emerging technologies, principally artificial intelligence.

If then-Secretary Carter’s Deputy Secretary of Defense Bob Work serves in a position of responsibility, the possibility that the Biden Administration will be especially aggressive in this area will be high, as Work has served as Vice Chair of the National Security Commission on AI during the Trump Administration. In that capacity, Work has been at the forefront of policy issues regarding AI, calling for the U.S. to set aside one percent of the defense budget (around $7 billion annually) for AI projects and creating a private-public partnership among the Pentagon, academia, and the private sector specifically to compete with China’s civil-military fusion strategy.

Over the law few days, an ad hoc group of progressive lawmakers, non-defense think tanks and anti-war groups have raised concerns about President-elect Biden’s defense and national security landing team over its “nearly unanimous links” to top military contractors and have formally appealed the transition team “to recruit a more diversified group of national security thinkers” and “bring some more progressive voices in.” Over the next few weeks, we will consider carefully how the President-elect and his top advisors respond to those concerns, particularly in terms of populating its defense and national security landing team and its short lists for top defense and national security posts in the new Administration—and the policy implications of such responses.

ARTICLE BY Pablo E. Carrillo, Jack Deschauer

and David LesStrang of Squire Patton Boggs (US) LLP

For more articles on the 2020 election, visit the National Law Review Election Law / Legislative News section.

The National Law Forum

Happy Thanksgiving TCPAworld!: Here Are the Top 10 TCPA Stories to be Grateful For This Time of Year

Like this:

Privacy Tip #261 – Online Shopping Tips for the Holidays

Like this: