Let’s talk about the election
The Association’s Restaurant Law Center recently held a webinar to discuss potential impacts on the industry from this year’s ever-present election.
Beyond the presidential contest, Emily Loeb, partner at Jenner & Block, Washington, D.C., explained other elections at the federal and state levels could affect restaurants just as much, or more, than the one for the White House.
She said races in Alabama, Arizona, Colorado, Maine, North Carolina, Montana, South Carolina, and Iowa are especially close and vital to a potential Democratic upset in the Senate.
Today’s split is 53 Republicans and 47 Democrats. If Joe Biden wins, the Association said, Senate Republicans could lose no more than a net of two seats and remain in control of the Senate. If President Donald Trump is reelected, they could lose no more than a net of three seats to remain in control.
In the House, races for 28 seats are currently competitive. But no matter who wins, the Association said, Democrats are likely to retain position, with Nancy Pelosi as Speaker of the House.
State contests are worth paying attention to because winners will redraw legislative districts based on this year’s Census count. Up for election are governorships in 11 states, attorneys general in 10 states, and 86 state chambers—22 of which are expected to be closely fought out.
One of the biggest shifts to potentially affect restaurants as well as social issues is the appointment and likely confirmation of judge Amy Coney Barret to the Supreme Court before November 3, the Association said.
On the pandemic slant
While very much still in the air, Congress’ latest pandemic relief includes bipartisan legislation in the House and Senate for $120 billion in grants to restaurants. The bill promises a second round of forgivable Payroll Protection Loans, employee retention tax credits, a “healthy workplace” tax credit for increased COVID-related business costs, and other measures.
“While negotiations may be currently stalled, it’s critical for restaurant operators to stay engaged and keep pressing so there’s a breakthrough by the end of the calendar year,” Aaron Frazier, the Association’s director of healthcare and tax policy, said.
Gabriel Gillett, partner, Jenner & Block, Chicago, added, after the election, restaurants should expect increased federal oversight and investigation of where money spent for the CARES Act actually went.
In one example shared by the Association, while the SBA has just begun its forgiveness process for PPP loans, the Justice Department has already begun fraud prosecutions against parties who received loans illegally.
He said regulators will next look to issues surrounding workplace health and safety, employment and labor, and privacy.
From an overarching perch, election wins that give Democrats either the White House or a majority of federal or state levels will result in more regulation (just look at Fair Workweek laws).
Here’s a breakdown of what could be affected, from the Association:
Health & Safety
- Potential new Occupational Safety and Health Administration rules on PPE, responding to infected persons, hazards to employees, etc.
- Legislation on vaccine enforcement and discrimination
- Action on business liability or legal protections for businesses that take measures to comply with CDC and other guidance
- Legislation responding to outcomes of employee, customer, and nuisance claims
Labor & Employment
- Ongoing litigation, legislative changes and ballot initiative on California’s AB5 Worker Classification Law (in effect since January 1, 2020, it requires companies that hire independent contractors, i.e., gig workers, to reclassify them as employees, with a few exceptions)
- Potential federal and/or additional state worker classification proposals and legislation
- Expansion of paid leave laws
- Benefits for part-time and temporary employees
- Minimum wage initiatives
- Increased oversight of employers
- Level of federal investigation/enforcement may change
- Potential introduction and scope of federal data privacy law; impact at state level
- Issues more directly related to opening/remaining open during pandemic
- Business interruption insurance or similar backstop
- Food waste regulations
- Prop 65 expansion beyond California (it requires the state to maintain and update a list of chemicals known to the state to cause cancer or reproductive toxicity)
- Natural gas bans