New Administration, New Day: President Biden Continues Changes in Labor and Employment World

By Jessica D. Osborne & Liani J. Reeves - Bullard Law

February 2, 2021

As we reach the end of Week 2 of the new administration, it is already apparent that there will be significant impacts in the area of employment law. Here is a summary of some of the key actions that will change the labor and employment landscape for employers:

Secretary of Labor: On January 7, 2021, President-elect Biden announced his nomination of Boston Mayor Marty Walsh as Labor secretary. The Labor secretary has the power to enact regulatory changes that will significantly impact employees and employers. Walsh is a former leader of Boston's Building and Construction Trades Council, a group that represents ironworker and electrician unions, among others. It is expected that Walsh will play a key role in implementing the pro-worker agenda advanced during President Biden’s campaign, including support for increasing the federal minimum wage and support for the House-passed Protecting the Right to Organize Act (PRO Act), which would strengthen workers' ability to unionize.

National Labor Relations Board: In bold moves celebrated by union leaders, President Biden has fired the top two lawyers at the National Labor Relations Board (NLRB). On Day 1, he fired General Counsel Peter Robb, who refused to resign his term early upon President Biden’s request. Alice Stock, Robb’s chief deputy, ascended to the acting role but was fired the next day. Both were considered management-friendly. The General Counsel role is independent of the Board and is responsible for the investigation and prosecution of unfair labor practice cases and the general supervision of the NLRB field offices in the processing of cases. As such, the position has significant control over the direction of the NLRB and the application of the National Labor Relations Act in the workplace, which could have significant impacts on both union and non-union employers. The President named Peter Sung Ohr Acting General Counsel until the President announces a nominee to be confirmed by the Senate. Ohr is a veteran of the NLRB, having previously served as Regional Director of the Chicago Regional Office (Region 13). His appointment of Ohr is seen as a step toward establishing a more employee and union-friendly NLRB – and another path-breaking representative of the new administration. In 2014, while in his position as Regional Director, Ohr held that Northwestern University college football players who received grant-in-aid scholarships are employees with the legal right to unionize (the union vote later failed, and the full Board in Washington declined to exert jurisdiction over a now moot question). In other NLRB changes, President Biden named Lauren McFerran, NLRB’s lone Democrat, as chair of the five-member agency. McFerran began her service on the Board in December 2014, continuing through the prior administration, and was confirmed in July for another term ending in December 2024. Ohr has already rescinded ten of Robb’s memo’s, describing them “inconsistent” with the National Labor Relation’s Act’s stated goal of encouraging collective bargaining and protecting workers’ rights, or because they’re obsolete or contrary to Board law.

Equal Employment Opportunity Commission: President Biden appointed Charlotte Burrows as the chair and Jocelyn Samuels as vice chair of the Equal Employment Opportunity Commission (EEOC). Both are Democrats. As Chair, Burrows will be responsible for the administration and implementation of policy and for the financial management and organizational development of the EEOC. As such, Democrats will exercise significant control over the commission even though they currently only hold two of the five seats. The next Republican’s term expires July 1, 2022, at which point President Biden will likely appoint another Democrat, providing majority control over the commission.

President’s Executive Orders: The President has wasted no time using the power of the executive branch to set the administration’s direction related to the COVID-19 pandemic response, racial inequities and systemic racism, climate change, and immigration. Orders that will have the most significant impacts on employers include:

•    Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (January 20, 2021): Expands federal nondiscrimination protections based on sexual orientation and gender identity. This order reversed many policies implemented by the prior administration and aligns federal protections with those already found in many state laws, including Oregon and Washington.

•    Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (January 20, 2021): Recognizes the existence of entrenched disparities in laws and public policies and establishes a systematic approach to advancing equity.

•    Executive Order on Protecting the Federal Workplace and Requiring Mask-Wearing (January 20, 2021): Requires all on-duty or on-site federal employees, on-site federal contractors, and all persons in federal buildings or on federal lands to comply with CDC guidelines with respect to wearing masks, maintaining social distancing, and other public health measures.

•    Executive Order on Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) (January 20, 2021): Restores the Obama-Biden Administration’s Deferred Action for Childhood Arrivals (DACA) guidance, which deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military, and allowed for eligible individuals who pass a background check to request temporary relief from removal and to apply for temporary work permits.

•    Executive Order on Protecting Worker Health and Safety (January 21, 2021): Requires the Occupational Safety and Health (OSHA) to review workplace safety guidelines during the COVID-19 pandemic and enforcement efforts, including whether to issue emergency temporary standards on COVID-19, which would have the force of law. For more information, see our Alert here. OSHA just issued updated guidance on January 29, 2021, which will be detailed in an upcoming alert.

•    Executive Order on Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats (January 21, 2021): Establishes a national COVID-19 testing and public health workplace strategy, with a focus on increasing the recruitment and training of healthcare workers.

•    Executive Order on Promoting COVID-19 Safety in Domestic and International Travel (January 21, 2021): Requires masks to be worn in all airports and on public transportation and sets out intent to require proof of recent negative COVID-19 test prior to entry into the country. For more information, see our Alert here. See below for the Center for Disease Control’s order implementing the President’s Order.

•    Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers (January 21, 2021): Outlines policy to support the reopening of schools for safe, in-person learning. For more information, see our Alert here.

•    Executive Order on Ensuring an Equitable Pandemic Response and Recovery (January 21, 2021): Requires federal agencies to assess disproportionate economic or health effects from COVID-19, which would include impacts on employment and may lead to increased enforcement efforts.

•    Executive Order on Protecting the Federal Workforce (January 22, 2021): Recommends a $15/hour minimum wage for federal employees and restores their collective bargaining power and protections through order rescinding prior administration’s order that limited collective bargaining power of federal unions and made it easier to terminate the employment of federal employees.

•    Executive Order on Economic Relief Related to the COVID-19 Pandemic (January 22, 2021): Directs executive departments and agencies to look for ways to address the current economic crisis resulting from the pandemic.

•    Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform (January 25, 2021): Revokes prior administration’s memorandum barring military service by transgender individuals and directs military leaders to take steps to ensure all otherwise eligible transgender individuals who wish to serve in the United States military can do so openly and be free from discrimination, including establishing a process by which transgender service members may transition gender while serving.

•    Executive Order on Ensuring the Future is Made in All America by All of America’s Workers (January 25, 2021): Outlines policy of the administration to procure goods, products, materials, and services from sources that will help American businesses compete and help American workers thrive.

•    Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease (January 25, 2021): Imposes travel restrictions due to heightened increase of transmission of Coronavirus (including newly identified variants) for individuals traveling from the entirety of the Schengen Area, the United Kingdom (including overseas territories outside of Europe), Brazil, and South Africa. The travel restrictions do not apply to lawful permanent residents and citizens of the U.S., as well as many categories of nonresidents and noncitizens described in the Proclamation, including many types of visa holders.

Center for Disease Control:

In support of (and addition to) the President’s actions on COVID-19 restrictions relating to travel, the Center for Disease Control (“CDC”) issued two requirements relating to travel: one relating to mask requirements on all interstate conveyances; and one relating to international air travel.

•    Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs (January 29, 2021, effective February 1, 2021): In furtherance of Executive Order on Promoting COVID-19 Safety in Domestic and International Travel (January 21, 2021), the CDC issued an order requiring all persons to wear masks throughout the process of traveling by interstate public transportation (with limited exceptions) – whether by plane, train, or automobile. All persons must keep their masks properly on (covering the nose and mouth) while boarding, disembarking, and throughout the duration of the travel, including while in all travel hubs, such as airports, bus stations, and train depots. States, local, territorial, and tribal authorities, as well as private transportation companies and travel hub operators, may require greater public health protections.

•    Requirement for Proof of Negative COVID-19 Test or Recovery from COVID-19 for All Air Passengers Arriving in the United States (January 29, 2021): The CDC also issued requirements relating to international travelers coming into the United States by air to show a negative COVID-19 test result taken no more than 3 days prior to travel, or be prepared to show recent proof of recovery (recent positive viral test and a letter from healthcare provider or public health expert). Travelers must also get tested 3-5 days after travel and self-quarantine for 7 days after travel or self-quarantine for 10 days after travel.

What’s Next:

•    In a Fact Sheet: President Biden’s New Executive Actions Deliver Economic Relief for American Families and Business Amid the COVID-19 Crisis, issued on January 22, 2021, President Biden outlined an all-of-government effort to address economic hardships related to the pandemic. This includes direction to the Secretary of Labor “to consider clarifying that workers have a federally guaranteed right to refuse employment that will jeopardize their health and if they do so, they will still qualify for unemployment insurance.” It also outlines his position that the federal government should only award contracts to employers who give their workers the pay and benefits they have earned and directed his administration to start work that would allow him to issue an Executive Order within the first 100 days that requires federal contractors to pay a $15 minimum wage and provide emergency paid leave to workers.

We will continue to monitor changes that will impact employers. We also invite you to save the date for Bullard’s webinar that will discuss how the new administration will impact employers on February 18, 2021, at 10 am. More details to follow.