Week in Review

IN THE NEWS 

• President Joseph R. Biden signed the Federal Trade Commission Collaboration Act of 2021 into law. The Act requires the Federal Trade Commission (FTC) to study and report on existing efforts “to prevent, publicize, and penalize frauds and scams” being perpetrated on individuals in the United States. Under the Act, the FTC must consult with various groups—including state Attorneys General, public interest groups, and private sector entities—and provide opportunities for public comment. The Act mandates that the FTC submit its completed report to Congress along with recommendations on how to enhance widespread, collaborative efforts to combat fraud.
• The U.S. Food and Drug Administration (FDA) authorized the use of a single dose of the two-dose vaccines as a COVID-19 booster for young children. FDA’s authorization allows medical providers to give a single dose of the Moderna vaccine to children as young as 6 years old and the Pfizer vaccine to children as young as 5. According to FDA, the booster provides broad protection against different strains of COVID-19, including the prevalent Omicron variant. Director of the Center for Biologics Evaluation and Research at FDA, Peter Marks, noted that childrens’ return to in-person classes increases their risk of exposure to COVID-19 and encouraged parents to consider vaccinations and boosters for their children.
• The U.S. Department of Labor proposed a rule that would reclassify some independent contractors as employees under the Fair Labor Standards Act. Secretary of Labor Martin Walsh explained that the rule would address the problem of employers misclassifying workers as independent contractors. The Labor Department stressed that federal minimum wage and overtime pay rules historically have not covered independent contractors. In its proposal, the Labor Department clarified that employers and workers can determine whether someone is an employee or an independent contractor under federal labor law by considering several “economic reality” factors. The Labor Department called employers misclassifying their employees as independent contractors “a serious issue that denies workers’ rights and protections under federal labor standards, promotes wage theft, allows certain employers to gain an unfair advantage over law-abiding businesses, and hurts the economy at-large.”
• President Biden signed an executive order to implement a data privacy agreement between the United States and the European Union. The order added protections for data transferred to the United States from the EU and established a data protection review court within the U.S. Department of Justice to review intelligence activities. This order followed a ruling from the EU’s highest court, which concluded that the United States insufficiently protected EU data under its surveillance practices.
• President Biden signed the One Stop Shop for Small Business Compliance Act of 2021 into law. The Act requires the U.S. Small Business Administration’s Office of the National Ombudsman to create a publicly available centralized website for small entity compliance guides by April 10, 2023. Congress members outlined through statute that these compliance guides should show small businesses how they can comply with government agencies’ rules and regulations as they arise. The Act also stipulates that the website must contain hyperlinks to the compliance guides and contact information for individuals who can aid small businesses in complying with the guides.
• The U.S. Environmental Protection Agency (EPA) proposed a determination that lead emissions from leaded-fuel-run aircraft cause or contribute to air pollution. EPA identified these aircraft as the “largest remaining source of lead emissions into the air,” which can have lasting adverse effects on public health. EPA stated it will initiate a public notice and comment process on its proposal. If finalized, the determination would allow EPA to propose regulatory standards for aircraft lead emissions.
• The U.S. Department of the Interior proposed new protections for the area of the Thompson Divide in Colorado. U.S. Department of Agriculture Secretary Tom Vilsack said the area is “well known for its picturesque ranches, vibrant outdoor recreation economy, and stunning landscapes.” If it passes, the proposal would pause new mineral leasing, allowing the Interior Department to consider scientific evidence and public input. The Interior Department stated it will consult tribes, state and local governments, industry, and environmental groups on its proposal.
• A federal court ordered a Hyundai and Kia auto parts manufacturer in Alabama to stop illegally employing minors after a Labor Department investigation uncovered that the manufacturer was employing 13-, 14-, and 15-year-olds in its facilities. In the order, the court required the manufacturer to train its workers on federal child labor laws, terminate or suspend those who do not comply with these laws, and pay a $30,076 penalty. The Labor Department Wage and Hour Division district director Kenneth Stripling commented that “employers are responsible for knowing who is working in their facilities.”

WHAT WE’RE READING THIS WEEK

• In an article in the Department of Justice Journal of Federal Law and Practice, David Howard Sinkman and Gregory Dorchak, assistant U.S. attorneys at the U.S. Department of Justice, argued that federal enforcement of the Americans with Disabilities Act (ADA) in jails and prisons leads to fewer opioid overdose deaths. Sinkman and Dorchak explained that Opioid Use Disorder (OUD) qualifies as a disability under the ADA, and that the ADA thus protects individuals’ use of medications approved for the treatment of OUD. Sinkman and Dorchak noted that opioid overdose deaths occur at relatively higher rates in jails and prisons. Sinkman and Dorchak concluded that ensuring jails and prisons comply with the ADA and permit treatment for individuals living with OUD could go a long way in reducing opioid overdose deaths.
• In a Center for American Progress report, Kevin Manuele, freelance worker at American Progress, and Mark Haggerty, senior fellow on the energy and environment team at American Progress, argued that the Federal Emergency Management Agency (FEMA) can protect those most vulnerable to climate disasters in rural areas by allocating pre-disaster resilience funds to those areas. Manuele and Haggerty criticized FEMA’s strategy for allocating most resources to post-disaster relief rather than pre-disaster resilience. Manuele and Haggerty explored recommendations for strengthening pre-disaster resilience in rural communities, including removing aid criteria that disadvantages rural areas.
• In a forthcoming Cardozo Law Review article, Joni Hersch, professor of law and economics at Vanderbilt Law School, and Colton Cronin, research assistant at Vanderbilt Law School, proposed regulation and litigation to halt the expansion of a religious charter school network. A core problem of charter schools generally, Hersch and Cronin argued, “is that there are limited incentives to monitor or hold charter schools accountable for their performance.” Hersch and Cronin pointed to one charter school network that developed an “alternative administrative structure” that allowed it to control curriculum but avoid oversight, which the authors claim can lead to financial fraud, abuse of funds, and conflicts of interest. To combat these potential negative effects and promote equitable educational opportunities, Hersch and Cronin proposed strengthening monitoring regulations and increasing litigation to limit the abilities of charter schools to act in their own financial interests.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Thibault Schrepel, associate professor at Vrije Universiteit Amsterdam, discussed recent antitrust cases related to blockchain technologies. Schrepel observed that these cases involved legal issues such as anti-competitive conspiracy and price-fixing in blockchain networks. Schrepel proposed approaching blockchain technology and antitrust enforcement as a cooperative endeavor because both “seek to decentralize economic opportunities.” Schrepel suggested that antitrust regulators use blockchain technologies to strengthen enforcement against big tech companies that abuse their market positions.