The First 100 Days of the Biden Administration: Labor and Employment Activity

By Brianne Dunn, William Pokorny, Michael Warner and Tracey Truesdale - Franczek, P.C.

January 29, 2021

Each Friday during the first 100 days of the new administration, we will provide a recap of significant initiatives and events that will impact employers.

In week two, the Biden administration shook things up at the National Labor Relations Board with the firing and replacement of General Counsel Peter Robb, walked back President Trump’s pro-independent contractor agenda at the Department of Labor, made new appointments at OSHA, and issued additional employee-friendly Executive Orders.

Executive & Agency Actions

DOL Withdrawal of Independent Contractor, Tip Pool Opinion Letters

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) has withdrawn opinion letters FLSA 2021-4, FLSA 2021-8 and FLSA 2021-9 for the stated reason that they “were issued prematurely because they are based on rules that have not gone into effect”. Two of the withdrawn letters dealt with classifying certain workers as independent contractors, while the third concerned tip pooling. Worker misclassification was a key element of the President’s election platform.

Per the WHD, the opinion letters “may not be relied upon as statements of agency policy as of the date of withdrawal”. WHD issued 13 “lame duck” opinion letters in the waning days of the Trump administration, and the agency withdrew the three listed above pursuant to the regulatory freeze memo that the President issued to federal agencies on Inauguration Day.

What’s to come: The two independent contractor opinion letters were based on DOL’s Final Rule on Independent Contractor Status Under the Fair Labor Standards Act, which is slated to take effect on March 8, 2021. We anticipate that the DOL will withdraw that Final Rule and return to the agency’s historically pro-employee stance on worker classification issues. We expect that the agency will also be examining nearly 70 other opinion letters issued at WHD over the past four years.

OMB Guidance on COVID-19 Safe Federal Workplaces

As one of several campaign promises Biden has addressed in his first two weeks, the administration through the Office of Management and Budget (OMB) released guidance requiring more rigorous COVID-19 protocols in federal workplaces. The guidance applies not only to federal employees, but also to private contractors working onsite in federal facilities. Most of the subjects addressed in the plan should be familiar to employers: face masks, social distancing, remote work, reduced building occupancy, creation of planning teams, testing, contact tracing, travel, symptom monitoring, quarantine and isolation, hygiene, and improved ventilation.

What’s to come: The administration has made clear that COVID-19 safety measures are its highest priority since day one, when the administration issued an order directing OSHA to strengthen COVID-19 safety guidance and consider adopting an emergency COVID-19 standard to protect workers. While the OMB guidance only applies to federal workers and contractors, employers should expect to see additional broadly applicable guidance on COVID-19 precautions from OSHA and the CDC soon. Additionally, as reported by Franczek last week, the President has committed to increased workplace safety enforcement through increased staffing at OSHA.

Executive Order on Protecting the Federal Workforce

President Biden issued an Executive Order increasing the collective bargaining power of federal unions. The order repealed several 2018 Executive Orders that had limited collective bargaining for federal employees by, among other things, capping taxpayer-funded time for union business and streamlining systems for disciplining and terminating federal employees. The new Executive Order emphasizes that it is “the policy of the United States to encourage union organizing and collective bargaining” and “[t]he federal government should serve as a model employer”.

What’s to come: While this Executive Order only directly impacts federal workers, it is yet another clear statement by the new administration that it intends to aggressively advance the interests of organized labor in all sectors of the economy, public and private.

Executive Order on Ensuring the Future is Made in All of America by All of America’s Workers

President Biden, making good on another campaign promise, issued an Executive Order amplifying the Executive Branch’s commitment to support American businesses through federal purchasing. The action items identified in the Executive Order are designed to “invest in American manufacturing”, “grow good-paying, union jobs”, and “advance racial equity”.

What’s to come:  Domestic suppliers of goods and services should anticipate a friendlier federal marketplace as agencies are directed to prioritize American-made purchases through changes in contracting, shipping, and tax initiatives.

Executive Order on Racial Equity

President Biden signed a package of four executive actions aimed to advance racial equity. These include orders to redress racially discriminatory federal housing practices, end the use of private prisons, honor government commitments to tribal sovereignty and consultation, and require the government to combat racism, xenophobia and intolerance against Asian Americans and Pacific Islanders in the United States.

What’s to come: While these orders are not specific to employment, they affirm the Biden administration’s commitment to promoting equity and redressing various forms of discrimination. Employers can expect to see these priorities play out in a variety of areas, from regulation of federal contractors to enforcement activities by agencies such as the EEOC and Department of Justice, as well as in the administration’s push to strengthen the power of organized labor.

Leadership Moves

Peter Sung Ohr New Acting GC at NLRB

With Peter Robb out as General Counsel at the National Labor Relations Board (NLRB), career NLRB official Peter Sung Ohr has been tapped to serve as Acting General Counsel. Prior to his appointment, Ohr served as Regional Director for the NLRB’s Region 13 in Chicago, working his way from Field Attorney and Deputy Assistant General Counsel.

Ohr will serve as Acting General Counsel for up to 40 days unless a nomination is submitted to the Senate.

What’s to come:  Ohr’s appointment to leadership continues the administration’s effort to shift the Labor Board in a decidedly pro-union direction. Ohr is known in the Chicago community for his for passionate community outreach efforts, often partnering and collaborating with employee and employer groups to discuss the agency’s mission and recent developments in the law. Notably, in 2014, Ohr issued a decision finding Northwestern University scholarship football players were employees under the NLRA and directed an election to determine representation. This decision was ultimately reversed by the Board, but signals Ohr’s willingness to push the envelope on controversial issues.

Deputy Appointments at OSHA

•    James Frederick Designated as #2 at OSHA

James Frederick has been selected as Deputy Assistant Secretary at OSHA after 25 years leading the Steelworkers’ EHS department where he was described as a strong workplace safety advocate.

•    Joseph Hughes Designated as Deputy Assistant Secretary for Pandemic and Emergency Response for OSHA

Joseph T. Hughes, Jr. has been designated to the newly created role of Deputy Assistant Secretary for Pandemic and Emergency Response. Hughes has forty years of experience in both the private and public sectors in developing environmental and occupational health education programs for workers and citizens in high-risk occupations and communities. He was the former branch chief of the National Institute of Environmental Health Sciences’ Worker Education and Training Program and has experience with large-scale coordinated relief efforts arising from 9/11, Hurricane Katrina, Ebola and the COVID-19 pandemic.

What’s to come:  Frederick and Hughes’ appointments further the Biden administration’s workplace safety agenda, including OSHA’s issuance of an emergency temporary standard related to COVID-19.