Quick Links to Articles for February 5, 2021

DOL Ends Program Allowing Employers to Self-Report Federal Minimum Wage and Hour Violations

OSHA Issues Stronger Workplace Safety Guidance to Protect Employees from COVID-19 Virus

FMCSA Reveals 56,000 Driver Violations Reported to Drug and Alcohol Clearinghouse in 2020 

More Automakers Drop Out of Trump Lawsuit Seeking to Roll Back Auto Emission Rules

EMA Gets Out Front Against Minimum Liability Insurance Coverage 

Federated Insurance Risk Management Academy Webinar

January 2021 EMA Small Business Committee (SBC) PAC Contributions

Federated Insurance Employment Practices Network HR Question of the Month

January 2021 EMA MDF Contributors

This week, the Energy Marketers of America (EMA) joined 30 other associations in a letteropposing the Raise the Wage Act of 2021 which would increase the federal minimum wage to $15 per hour over five years and allow for annual automatic increases without the consent of Congress. Senate Majority Leader Chuck Schumer (D-NY) is pushing to include a $15 minimum wage hike in what is known as “budget reconciliation,” which allows a bill to pass with 51 Senate votes instead of the normal 60 votes. However, all 50 democratic Senators will need to support the effort leaving them no room for error. Senator Joe Manchin (D-WV) has already indicated he opposes the $15 minimum wage hike. 

During last night’s budget reconciliation “vote a rama,” the Senate unanimously adopted an amendment from Sen. Joni Ernst (R-IA) that would ban the $15 minimum wage hike during the pandemic. Even Senator Bernie Sanders supported, however, he argued his plan would increase the minimum wage over five years, rather than an immediate $15 increase during the pandemic. Senate Republicans said the $15 minimum wage is a non-starter arguing that it will hurt small businesses and lead to job losses. They also argue that the states are in better position to increase the minimum wage. 

According to the Congressional Budget Office (CBO), this legislation would result in 3.7 million job losses by 2025, with a median estimate of 1.3 million job losses. A $15 per hour federal minimum wage would reduce business income and raise prices as higher labor costs were absorbed by business owners and then passed on to consumers. CBO estimates the legislation would represent a $64 billion reduction in business income and a reduction in total real family income of $9 billion by 2025.

Meanwhile, Senate Majority Leader Chuck Schumer (D-NY) and Minority Leader Mitch McConnell (R-KY) reached a power-sharing agreement to govern the 50-50 Senate. The agreement recognizes a Democratic Senate majority and resembles a previous agreement adopted by former Senate leaders Trent Lott (R-MS) and Tom Daschle (D-SD) the last time the Senate had a 50-50 split. Under the agreement, Majority Leader Schumer (D-NY) pledged not to limit amendments, except for those intended to delay action, and Minority Leader McConnell pledged to avoid lengthy debates on procedural votes, which will accelerate the process by which bipartisan legislation can receive a floor vote.

Senate Democrats have retaken control of committees, though each party has equal committee representation. The resolution also includes a process for discharging legislation and nominations that see a 50-50 tie, thus preserving the Democrats’ narrow majority. While the power-sharing agreement allows the Senate to begin fully functioning, it underscores the precarious nature of a 50-50 split, as one Democratic defection could halt attempts at passing progressive legislation.

To this end, negotiations continue on additional COVID relief as President Biden attempts to secure his first legislative priority. President Biden proposed a $1.9 trillion package, which 10 Senate Republicans countered this week with a $600 billion proposal. President Biden stated that the Republican approach is not enough, though the White House indicated a smaller package – in the $1.3 trillion range – might be a better approach. Whether Democrats can leverage the reconciliation process to pass legislation is largely subject to securing every Senate Democratic vote. 

Thus far, President Biden’s cabinet nominees have received favorable, bipartisan support in the Senate. On February 2, the Senate overwhelmingly confirmed (86-13) Pete Buttigieg as Secretary of Transportation. A former mayor, Secretary Buttigieg will lead President Biden’s key transportation priorities such as expiration of surface transportation authorization and increasing revenue for the Highway Trust Fund (HTF). The main federal HTF funding source, the gas tax, has not increased since 1993. Failure to identify additional revenue sources could exhaust all HTF funding. 

Secretary Buttigieg has repeatedly floated a vehicle miles traveled (VMT) tax as the solution. While previous VMT proposals were rejected, increased EV investment, bipartisan VMT interest, and gas tax increase opposition may jump start VMT efforts. However, during his confirmation hearing, Buttigieg acknowledged that concerns, such as privacy and technology, must be addressed before a VMT approach is “ready for prime time.”

The U.S. Department of Labor this week announced the immediate end of its Payroll Audit Independent Determination (PAID) program launched by the department’s Wage and Hour Division in 2018. The program was terminated effective January 29, 2021. The PAID program allowed employers to self-report federal minimum wage and overtime violations under the Fair Labor Standards Act. Once reported, employees were barred from suing for back wages and damages owed to them due to the violations. Instead, employers were able to work directly with the DOL Wage and Hour Division to correct violations and deliver any back wages to employees. 

The DOL said the PAID program is no longer needed because the department provides significant outreach and educational resources for employers seeking assistance to understand their responsibilities to comply with wage and hour laws. In addition, the department said its resources are sufficient for helping employers comply without relieving them of their legal obligations and ensure that employees understand their rights. The end of the PAID program means that employers can only obtain a release of FLSA claims through a court-approved settlement or as a result of an investigation initiated by the DOL. Even though the PAID program is over, employers should continue to self-audit their pay records and correct any potential wage and hour violations that are identified to reduce liability. 

The Occupational Safety and Health Administration (OSHA) has issued stronger worker safety guidance to help employers and workers to implement a coronavirus prevention program and identify risks which could lead to exposure and contraction. The guidance,Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace provides updated guidance and recommendations, and outlines existing safety and health standards. OSHA is providing the recommendations to assist employers in providing a safe and healthful workplace. The guidance is not a standard or regulation and creates no new legal obligations for employers. Instead, it contains recommendations and descriptions of existing mandatory safety and health standards. 

The updated guidance recommends that employers adopt the following elements for their workplace COVID-19 prevention program:

• Conduct a hazard assessment.

• Identify control measures to limit the spread of the virus.

• Adopt policies for employee absences who do not punish workers to encourage potentially infected workers to remain home.

• Ensure that coronavirus policies and procedures are communicated to both English and non-English speaking workers.

• Implement protections from retaliation for workers who raise coronavirus-related concerns.

The guidance also details key measures for limiting coronavirus’s spread, including keeping infected or potentially infected people out of the workplace; implementing and following physical distancing protocols; and using surgical masks or cloth face coverings. The guidance also offers advice on use of personal protective equipment, improving ventilation, good hygiene and routine cleaning.

The Federal Motor Carrier Safety Administration (FMCSA) announced that more than 56,000 CDL driver drug and alcohol violations were recorded last year in the agency’s Drug and Alcohol Clearinghouse database which began operation on January 6, 2020. The Clearinghouse is an online database that tracks all CDL drivers’ drug and alcohol compliance history. The purpose of the Clearinghouse is to prevent job-hopping by drivers in the event of failed drug tests. 

Employers of CDL drivers are required to use the Clearinghouse to upload driver drug and alcohol testing records and conduct searches for pre-employment drug and alcohol violations. Employers must also use the Clearinghouse to conduct annual drug and alcohol reviews for all CDL drivers employed by them. According to the FMCSA, only 1,203 of the 56,000 driver violations reported in the Clearinghouse database last year were alcohol related. Marijuana use accounted for 29,500 of all drug test failures reported in 2020. In addition, the Clearinghouse contained more than 7,940 failed tests for cocaine use, and 4,953 for amphetamine use. Also included in the total were about 1,120 tests described as reasonable suspicion of attempts to cheat on a drug test. The FMCSA reported more than 45,000 drivers lost their jobs in 2020 due to drug and alcohol violations. However, approximately 34,000 of those drivers have not yet completed the return-to-work program, suggesting they left their jobs for good. 

According to the U.S. DOT, there are 5,174,170 truck drivers under FMCSA authority. While using the Drug and Alcohol Clearinghouse is mandatory for all employers of CDL drivers, the 56,000 violations recorded in 2020 represents just 1.1 percent of the available driver pool nationwide. Marketers who have not signed up with the Clearinghouse should do so immediately. 

Please click here to review the EMA Drug and Alcohol Clearinghouse Compliance Bulletin sign-up instructions.

Toyota, Fiat Chrysler and several other automakers announced this week that they are abandoning a legal battle between the Trump Administration and California over the state's right to set its own standards for greenhouse gas emissions and fuel economy rules. 

Last year, GM, Fiat Chrysler, Toyota and 10 other automakers sided with the Trump Administration in a lawsuit filed by environmental groups challenging the Administration's plans to roll back emissions and gas mileage standards and strip California's authority to set its own emission standards. Ford, Honda, BMW and Volkswagen sided with California and cut a separate deal with the state to meet a 50-mpg fleetwide standard by 2026 for all vehicles sold nationwide.

Now that Biden is President, the automakers realized that continuing support for the Trump roll-back is no longer a viable way forward and have pledged to work with the Biden Administration to come up with a single nationwide corporate average fuel economy (CAFE) standard. The automakers will likely find common ground between the Obama and Trump Administration’s fuel economy standards. In a statement, the automakers, under the banner of the Coalition for Sustainable Automotive Regulation (CSAR), said “We are aligned with the Biden Administration’s goals to achieve year-over-year improvements in fuel economy standards that provide meaningful climate and national energy security benefits, reduce GHG emissions and promote advanced technologies,” the group said. “In a gesture of good faith and to find a constructive path forward, the CSAR has decided to withdraw from this lawsuit in order to unify the auto industry behind a single national program, with ambitious, achievable standards.” 

On Monday, EMA joined other organizations in a letter to members of the House Committee on Transportation & Infrastructure of opposition to any increase in the minimum liability coverage for motor carriers in the next surface transportation reauthorization bill. 

Although marketers are not included in the current proposed language, EMA continues to oppose any efforts to unnecessarily raise requirements on other industries since changes there might lead to changes for other trucking industries. 

Today’s minimum insurance level adequately covers damages in all but 0.6 percent of crashes, and other insurance and assets can cover those. Further, there is no reputable research indicating an increase of any amount would help reduce crash rates.

Phishing scams and schemes are becoming more creative every day as businesses and individuals find themselves targets of new tactics. In 2019, the FBI recorded more than $3.5 billion in losses to individual and business victims (www.fbi.gov). What can you do to protect against scams and phishing attacks?

Ransomware incidents, which rose dramatically in 2020, are showing no signs of slowing down. Business ramifications include increasing downtime and causing revenue loss, due to damage to brand and reputation. Learn about the emerging trends in ransomware and, more importantly, how to prepare BEFORE an attack occurs.

Advanced registration is required for this 45-minute webinar.

For additional information or to discuss this in further detail, please contact your Federatedregional representative or EMA’s National Account Executive Jon Medo at 800.533.0472. Federated is a EMA Corporate Platinum Partner. 

PAC Co-Chairs Brad Bell and Tim Keigher are grateful for the Energy Marketers of America Small Business Committee (SBC) PAC contributions from the following individuals during the January 1-31, 2021 time frame:

Alabama: Michael Anderson, Jonathon Bolk, Robert Brasher, Thomas Brown, Keith Chambers, Jeff Creel, James Eidson, Bart Fletcher, Christy Fletcher, Zane Hood, Will Jackson, Kenneth Kingsbury, J. Douglas Klyce, Deanna Lawley, Shayne Lord, Mike Milam, Dean Mooty, Robert Norris, Robert Shepard, Debbie Shirley, Scotty Short, James Sibley, Geoff Smith, Hollan Smith, David Thomas, Jennifer White, Tommy White, Cory Wiggins, Brian Young, Pam Young

Kansas: Brett Fletcher

Missouri: Mark Abel, Steve Ayers, Ron Bachman, Robert Baker, Wayne Baker, Brian Baker, jack Blanton, Mary Braddock, Grant Eble, Scott Frazier, Tony Gier, Bradford Goette, James Greer, Michelle Hoerstkamp, Tracey Hughes, Jami Jordan, Tom Kolb Ronald Leone, David Mangelsdorf, Jim Maurer, Stewart McIntyre, Don McNutt, James McNutt, Dave Milligan, Joe Naegler, Chris Patterson, Janice Patterson, Lane Patterson, Chad Wallis, Lynn Wallis, Jeff Wood, Laura Younghouse

South Carolina: Michael Fields, William Keenan

Tennessee: Sally Edwards 

Federated Insurance’s HR Question of the Month focuses on employment-related practices liability issues. This month’s question is: When wearing masks in the workplace, what is deemed "inappropriate?” Some employees are using their masks to show their affiliation for or against political or social causes (i.e., #BLM, Back to Blue, or "Make America Great Again,” etc.). How can the employer differentiate how to determine what is acceptable and what is not acceptable? Please click here to read the response. 

For additional information or to discuss this in further detail, please contact your Federatedregional representative or EMA’s National Account Executive Jon Medo at 800.533.0472. Federated is a EMA Corporate Platinum Partner. 

Energy Marketers of America’s Marketer Defense Fund wants to thank the following individuals for their contributions during the January 1-31 timeframe:

Arizona: Arizona Petroleum Marketers Association
Colorado: Colorado Petroleum Marketers and Convenience Store Association, Randy McFarland
Missouri: Missouri Petroleum Marketers and Convenience Store Association
New Mexico: New Mexico Petroleum Marketers Association
Oregon: Oregon Fuels Association
Pennsylvania: Richard Taylor
Washington: Washington Oil Marketers Association

Corporate donations are acceptable. MDF funds have been used to create a COVID-19 Situational Update & Resources webpage, to hire experts to cover important regulatory agencies and disaster relief dedicated to strengthening our lobbying efforts on Capitol Hill. Click here to donate to the EMA MDF.