Soon May
Jan 20, 2021


The Wellerman has come to bring us a trove of sea shanties, 2021’s most unexpected, yet most welcome, delivery. In the 18th and 19th centuries, these working songs helped sailors hoist sails in unison, row more effectively, and move ahead, together. We take our leave and go with a series of labor-related headlines set to our favorite sea-faring verse.  With a cresting wave of news this week, we’re gonna’ need a bigger note.



The U.S. Department of Labor’s (DOL) Wage and Hour Division issued an opinion letter regarding the compensability of travel time when employees divide their workday between their home and their employer’s place of business. Workers who choose to work from home before or after working in an office need not be compensated for the time traveling between the two, so long as the employee can attend to personal tasks during the travel window. The opinion letter illustrates that, if an employee chooses to “telework” for part of the day to facilitate attendance to personal tasks, such as a doctor’s appointment or a school conference, the intermittent time between the telework and the commencement of work at the office is not compensable because it is used “effectively for her own purposes.”



The Federal Motor Carrier Safety Administration (FMCSA) will pilot a program to cast for data on “split-sleeper flexibility” to benefit commercial drivers. New Hours of Service (HOS) rules allow drivers to split their sleeper berth time into two hourly segments known as the 8/2 or 7/3 split.  This 10-hour period does not count against a driver’s 14-hour driving window.  In the proposed pilot program, participating drivers would be able to split their 10-hours of sleeper berth time closer down the middle, either 5/5 or 6/4, so long as the two periods combine for at least 10 hours. FMCSA did not signal when the latest sleeper berth proposal would be published in the Federal Register, but it published a draft of the proposal on its website.



The U.S. Department of Transportation (DOT) increased fines for trucking infractions and outlined the penalty structure for truckers and motor carriers who violate Drug & Alcohol Clearinghouse requirements. In a Final Rule published last week, the DOT increased the fines for violation of regulations in accordance with the Federal Civil Penalties Inflation Adjustment Act of 2015, which requires that federal agencies increase fines each year to account for inflation. The new fine amounts are effective immediately.



The Occupational Health and Safety Administration (OSHA) launched a new data-driven inspection process to replace 2016’s site-specific directive.  The program will allocate enforcement resources to businesses with high injury and illness rates. The new program will be the primary targeting program for OSHA and will apply to non-construction companies that have at least 20 employees. Companies will be selected for the program based on the injury and illness data employers submit on form 300A for the years 2017, 2018, and 2019. In related news, President-elect Joe Biden will ask OSHA to consider emergency standards for COVID-19 workplace safety, seek enforcement against the worst violators, increase the number of inspectors, and develop strategies for addressing the most dangerous workplace hazards.



U.S. Representative Ed Case (D-HI) introduced three bills to reform the Jones Act, which he asserts, would “end a century of monopolistic closed market domestic cargo shipping to and from my isolated home state of Hawai‘i, as well as the other island and separated jurisdictionsof our country that lie outside the continental United States.”  The 1920 Jones Act requires all cargo moved between two U.S. ports to be carried by vessels that are built in the country, owned by a U.S. entity, and staffed by an American crew.  Supporters of the initiative attest that the median annual cost of the Jones Act to the Hawaiian economy is $1.2 billion.  Their estimates suggest that the Jones Act raises the cost and price of goods by over $600 million and deprives the Aloha State of 9,100 jobs to the tune of more than $400 million in wages.


Across the Western Ocean


From the South Pacific to the Trans-Atlantic.  The Supreme Court of the United Kingdom upheld the High Court’s ruling on the Financial Conduct Authority’s (FCA) business interruption insurance (BI) test case. The UK’s financial regulator brought the case forward last May to seek legal clarity on whether insurers were obligated to pay out on BI claims related to the COVID-19 pandemic. In September 2020, the High Court ruled in favor of policyholders on the majority of key issues.  A group of insurance and reinsurance companies appealed its ruling. A copy of the Supreme Court’s opinion, holding in favor of the insureds, is available here.  Small businesses across the UK celebrate the ruling as commentators project some 370,000 companies may have been affected by the outcome of the case, with estimated BI recoveries in the range of £3.7 to £7.4 billion.



Here in the United States, the litigation tracker maintained by the University of Pennsylvania’s Carey Law School shows only a small fraction of the pending 1,422 business interruption lawsuits have been decided.  That said, the initial rulings have been generally less favorable to insureds. In many of the recent cases, trial courts held that business losses are not covered unless there is tangible physical damage to the property.  Business groups have more successfully turned to state legislatures for relief.  In Illinois, the Small Business Grants for Pandemic Relief (HB 357) established emergency small business grants and loan assistance. The state's Business Interruption Grant (BIG) program, which is the largest state-run economic support program created in response to the pandemic, has distributed millions of dollars to help stabilize struggling small businesses this year.


Making Our Way Around the Country


Staying in the Land of Lincoln, the Illinois General Assembly Wednesday approved HB 3653, a measure whose sponsors assert brings "significant changes to training, accountability, and transparency in law enforcement.”  The bill makes changes to monetary bail rules, requires that all police officers wear body cameras by 2025, bans police chokeholds, sets new guidelines for "decertification" of police officers, and ends the suspensions of licenses for failure to pay.  The measure also bans police departments from purchasing military equipment like .50 caliber rifles and tanks, increases protection for whistleblowers, and adds to rights for detainees to make phone calls and access their personal contacts before police questioning.  The bill is now with Governor Pritzker (D-IL) for review.



Yesterday, the United States Supreme Court heard oral arguments in a case filed by the City of Baltimore against oil companies for allegedly understating the effect of their products on greenhouse emissions. Baltimore is seeking to hold energy companies liable for the costs of adapting to climate change effects such as sea level rise, flooding, and extreme weather. There are some two dozen similar claims, brought by cities, counties, and states across the country.  The defendants argue that Baltimore’s case, and others like it, deal with federal issues more properly addressed by Congress and the Executive Branch. In one more procedural note, only eight justices heard the case, as Justice Samuel Alito has recused himself for owning stock in some of the companies named in the suit.



The Division of Workers’ Compensation of the Texas Department of Insurance extended its mandatory data call for information related to COVID-19 injuries from selected insurance carriers until June 2021.  The DWC granted the extension to ensure carriers can supply sufficient information to determine the impact of COVID-19 injuries on the Texas workers’ compensation system.  The DWC originally issued the data call on June 2, 2020, from selected insurance carriers/groups, which must be supplied in data elements prescribed by the Division’s reporting forms and instructions



Back to our main story this week, the inauguration of Joe Biden as the 46th president and Kamala Harris as the vice president of the United States will take place at noon today.  This afternoon, the Bidens will arrive at The White House with a presidential escort by all branches of the military.  The administration will host a virtual parade showcasing all communities across the country. The Way stands ready to cover a chorus of new voices in Washington.  Until next week, stay safe, stay well, and stay connected.


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