Change in the political party of an administration can be expected to impact the development and interpretation of federal law and regulation. This is particularly true in the transition between former President Trump’s administration and that of President Joseph R. Biden.
President Biden has only been the President for two weeks, yet he has already made significant changes in the agencies that enforce federal labor and employment law. Below are some of the changes already made and what you can expect.
National Labor Relations Board
The National Labor Relations Board (NLRB) is a five-person board appointed by the President with Senate consent, for 5-year terms. At the present time, there are three Republican and one Democratic members of the NLRB. President Biden has appointed the sole Democratic member, Lauren McFerran, as chair. One position on the NLRB is vacant, and it is expected that President Biden will fill the fifth seat in the near future. In August and September, the terms of two of the Republican members will expire, and President Biden will undoubtedly replace them with his own appointees. Thus by September, the Democrats will have the majority on the NLRB.
The General Counsel of the NLRB is responsible for determining what types of cases should be prosecuted by the regional offices. The General Counsel often issues memoranda directing regional offices to issue Complaints based on specific factual situations and theories. Often the General Counsel seeks cases to challenge existing precedents to secure changes in the law.
Within hours of being sworn in as President, President Biden’s administration asked Peter Robb, the General Counsel under former President Trump, to resign from his position. The General Counsel is appointed for a four-year term and President Biden asked Peter Robb to resign his position approximately 10 months earlier than his four-year term would have expired. Previous Presidents have waited until the expiration of the General Counsel’s term before replacing them. When Peter Robb refused to resign, he was immediately terminated. The following day, the Biden administration terminated the Deputy General Counsel, Alice B. Stock, after she refused to resign. President Biden has appointed Peter Sung Ohr to serve as Acting General Counsel. Mr. Ohr is a career NLRB attorney, having begun his career with the NLRB in the Honolulu subregional office.
It can be expected that once the majority of the NLRB is Democratic, combined with a new General Counsel, this newly comprised NLRB will be issuing decisions and promulgating rules which expand employee and labor union rights.
Department of Labor (DOL)
President Biden has appointed Marty Walsh as his Secretary of Labor. Mr. Walsh served as the president of Laborers Union Local 223 and was publicly endorsed by AFL-CIO President Richard Trumka. Employers should expect that because of Mr. Walsh’s priorities, the DOL will be issuing rules focused on promoting and protecting the interests of labor unions and employees, and restoring many of the gains realized by labor unions and employees under President Obama. It can be expected that some of the initiatives issued by the Department of Labor under former President Trump will be rescinded. For example, on January 6, 2021 the U.S. Department of Labor announced its Final Rule to provide guidance on classification of a worker as an independent contractor under the Fair Labor Standards Act. The Final Rule is slated to take effect on March 8, 2021. The Final Rule makes it easier to prove an individual is an independent contractor rather than an employee. President Biden has indicated he will halt or delay all regulations which the Trump administration issued immediately prior to President Biden’s inauguration, including the independent contractor rule.
Office of Federal Contracts Compliance Policy (OFCCP)
On September 22, 2020, President Trump issued Executive Order 13950, which instructed government contracting agencies to add clauses to government contracts prohibiting the use of workplace training which includes any form of race or sex stereotyping. President Trump’s Order prohibited federal contractors and subcontractors from providing certain workplace diversity training and programs, such as implicit bias training. On January 20, 2021, President Biden issued Executive Order 13985, titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” Among other things, Executive Order 13985 revoked the Trump administration’s Executive Order 13950. As part of the withdrawal of President Trump’s Executive Order 13950, the telephone hotline and email address that was established to collect complaints about contractors’ alleged non-compliance with Executive Order 13950 has been shut down and all complaints of alleged non-compliance received through the hotline or any other means have been administratively closed.
Occupational Safety and Health Administration (OSHA)
On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety which directs the Department of Labor to issue revised guidance for employers within two weeks. The Executive Order also recommends that OSHA consider issuing emergency temporary standards for businesses to follow during the pandemic. The Executive Order instructed OSHA to examine mask-wearing requirements to offer additional resources to help employers protect their employees and to partner with state and local governments. On January 29, OSHA issued new guidance, entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace“. OSHA states this guidance is intended to inform employers and workers in most workplace settings outside of healthcare to identify and address risks of exposure to COVID-19. OSHA had come under criticism under the Trump administration for failing to issue any new standards or regulations regarding COVID and directing businesses how to protect employees from the spread of COVID in the workplace.
In addition, President Biden appointed James Frederick, a United Steelworkers Union official, to a top OSHA position. It can be expected that under Mr. Frederick’s leadership, OSHA will be issuing more worker-friendly regulations and enforcement than previously.
Federal Worker Protections
President Trump issued several Executive Orders which limited the right of federal workers to collectively bargain, set time limits on negotiating collective bargaining agreements with federal labor unions, and removed civil service protection for certain federal employees. President Biden has revoked all of these restrictions, signaling his approach on employee rights and labor union protections.
New Executive Orders and federal agency appointments all point to the likelihood that we will see more worker-friendly and union supportive regulations and interpretations of existing law. Under President Trump, many of the priorities of President Obama were weakened or reversed and we are now seeing a reversal of this reversal of priorities. Employers should assume that federal labor and employment agencies will be issuing new regulations and rolling back agency directives and rules which leaned employer friendly. Hold on to your hats!