Week in Review

IN THE NEWS

• The U.S. Department of Labor issued a final rule raising the salary threshold for when workers must be paid overtime under federal law. Starting in January 2020, employees making less than $35,568 per year must be paid overtime if they work more than 40 hours per week, a substantial increase from the current threshold of $23,660. In issuing the final rule, the Labor Department formally rescinded the Obama Administration’s 2016 overtime rule, which doubled the threshold to $47,476 but never actually went into effect. Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas had blocked the 2016 rule, holding that the Labor Department exceeded its authority in increasing the threshold so dramatically.
• The U.S. Court of Appeals for the Third Circuit rejected efforts by the Federal Communications Commission (FCC) to loosen media ownership regulations. Judge Thomas Ambro wrote that, in making it easier for companies to own multiple media outlets within a single market, the FCC “did not adequately consider the effect its sweeping rule change will have on ownership of broadcast media by women and racial minorities.” In partial dissent, Judge Anthony Scirica recognized that the FCC data on minority and women ownership was imperfect but suggested that better data would be available once “the FCC gains experience with the new rules.” FCC Chair Ajit Pai criticized the decision as an attempt by the Third Circuit to block “any attempt to modernize these regulations to match the obvious realities of the modern media marketplace.”
• California Governor Gavin Newsom signed a bill amending state labor law to reclassify many “gig economy” workers as employees rather than independent contractors. Under California law, workers classified as employees must be paid minimum wage and be provided with paid sick days. Governor Newsom called the bill a first step toward creating “lasting economic security for our workforce.” In response, Uber Chief Legal Officer Tony West stated that for Uber to “continue to be responsive to what the vast majority of drivers tell us they want most—flexibility—drivers will not be automatically reclassified as employees.”
• A coalition of 17 states asked the U.S. District Court for the Northern District of California to block new Trump Administration rules that weaken the Endangered Species Act. The rules, which took effect Thursday, September 26, loosen protections for species that are classified as “threatened” rather than “endangered.”  They also allow the government to consider economic impact when deciding whether to list a species as endangered. “This administration has shown over and over that it will stop at nothing to slash regulations at the whim of industry interests, even if it means putting our shared ecosystem at risk,” Washington Attorney General Bob Ferguson said.
• California became the first state to regulate smog standards for heavy-duty automobiles. “Our modern environmental movement goes back to the business community being sick and tired, in Los Angeles, of smog,” Governor Newsom said. The U.S. Environmental Protection Agency, however, issued a letter to California threatening to withdraw its highway funds if California did not issue backlogged State Implementation Plans to improve its air quality in compliance with the Clean Air Act.
• The National Labor Relations Board proposed a rule that would not classify as employees under the National Labor Relations Act students who perform paid work for private colleges or universities in connection with their studies. The rule would effectively reverse a previous decision by the Board finding that certain students were employees and thus entitled to legal protections under the Act, including the right to join a union. In a statement, the American Federation of Teachers criticized the proposal for allowing “universities to profit from grads’ work on the one hand, while claiming they aren’t even workers on the other.”
• The U.S. District Court for the District of Alaska granted a preliminary injunction to stop the U.S. Forest Service from going forward with a project, known as the Twin Mountain Timber Sale, to sell over a million acres of Alaskan land to loggers. This sale would have created the largest timber operation in the United States. Judge Sharon Gleason wrote, “Plaintiffs have established that they will suffer irreparable harm if the forest—particularly of old growth trees—authorized by the Twin Mountain Timber Sale occurs.”
• The FCC launched an investigation into allegations that Sprint improperly accepted federal cellular phone subsidies. FCC reports that Sprint accepted subsidies through the Lifeline program for 885,000 users who were not active customers. Lifeline provides cellular phone providers with a monthly subsidy of $9.25 to provide service to low-income individuals. FCC Chair Ajit Pai said it was “outrageous that a company would claim millions of taxpayer dollars for doing nothing.”
• The Court of Justice of the European Union held that the European Union’s (EU) “right to be forgotten” rule—which requires Google and other online search engine operators, upon request, to delist web pages containing sensitive personal information—does not compel companies to alter search results outside the EU. The court, however, held that search engine operators must take measures to “seriously discourage” individuals within the EU from obtaining the delisted information by using a non-EU country’s search engine. Bruce Brown, executive director of the Reporters Committee for the Freedom of the Press, said that the decision “helps ensure that search engines can remain both a crucial avenue for journalists to find information, and for the public to access news that informs our communities, promotes debate, and facilitates the exchange of ideas.”

WHAT WE’RE READING THIS WEEK

• Cary Coglianese of University of Pennsylvania Law School proposed moving away from a dichotomous model of agency autonomy, where regulators view agencies as either entirely independent or beholden to presidential control. Although agencies should have some independence to use scientific and other expertise, agencies should also have some degree of democratic constraint, according to Coglianese. He argued that a better understanding would be that of semi-autonomy, providing agencies some degree of control between the two extremes.
• The U.S. Supreme Court needs to strengthen its ethics standards, according to a new report by Johanna Kalb and Alicia Bannon of the Brennan Center for Justice at New York University School of Law. Unlike other federal judges, Kalb and Bannon noted, Supreme Court justices are not required to follow the Code of Conduct for U.S. Judges and are subject to only limited statutory restrictions governing recusal, conflict of interest, and outside employment. Because much of the Court’s power derives from public trust in its members’ integrity, Kalb and Bannon argued that the Court could improve its credibility by adopting a binding code of conduct and increasing transparency around recusals and gifts.
• In a recent article, Scott Stiefel, corporate counsel at Henry Schein One, investigated the privacy implications of providing and receiving mental health support through chatbots. Stiefel noted that current federal and state confidentiality regulations do not apply to interactive medical software even though patients may disclose private information to chatbots just as they would to a therapist. In advocating for the passage of new legislation imposing chatbot confidentiality requirements, Stiefel concluded that Congress could modify existing legal frameworks for medical data privacy to include this new technology.