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

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

April 13, 2021

Each week 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 twelve, the Biden administration’s labor and employment activity includes selecting a chief to lead the Occupational Safety and Health Administration (OSHA), increased staffing at the Equal Employment Opportunity Commission (EEOC), a temporary hold on an OSHA COVID-19 safety standard, and the rescission of a Trump-era policy limiting back pay liability for employer wage/hour violations.

Leadership Changes

Biden plans to nominate California OSHA leader to lead OSHA

President Biden intends to nominate Doug Parker to lead OSHA. Parker, a former Obama appointee at the Mine Safety and Health Administration, is currently chief of California OSHA.

What’s to come: OSHA has been without an agency chief for more than four years, its longest period in history without a Senate-confirmed leader. Parker’s appointment is expected to revitalize OSHA. He will lead the agency in the issuance, implementation, and enforcement of pandemic safety measures and policies, which are expected to include a COVID-19 emergency temporary standard (ETS) and potentially an infection disease standard. A COVID-19 ETS would require most private employers and potentially public sector employers to adopt and implement workplace safety measures to affirmatively protect employees from COVID-19 infection.

EEOC Aims to Expand Enforcement Through Increased Staffing

The EEOC plans to hire approximately 450 new staff to build up the agency as part of its effort to address systemic discrimination in the workplace. EEOC Chair Charlotte Burrows’ authorization of the mass hiring of employees is one of her first actions after stepping into the role.

What’s to Come: While the plan to hire hundreds of employees will help EEOC’s backlog of pending charges and lawsuits that has been exacerbated by the pandemic, it will also increase the number and reach of investigations and subsequent enforcement actions across the country. Employers should consider examining current practices and policies to ensure they are in full compliance with the law.

Policy Changes

DOL Secretary Walsh Puts OSHA COVID-19 on Hold

Secretary of Labor Marty Walsh has directed OSHA to table release of its proposed COVID-19 emergency temporary standard. The stated reason for the delay is so that the DOL and OSHA can consider the latest scientific analysis of the state of the virus. The agency made clear this update and review is of the analysis of the state of the disease and not the draft ETS itself.

What’s to come: As one of his first actions in office, President Biden issued a March 15th deadline to OSHA to determine whether COVID-19 poses a grave danger to workers thereby requiring an emergency standard. Both Walsh’s immediate review and the administration’s urgency to appoint an OSHA chief (see above) underscore the administration’s commitment to protect workers being affected by the pandemic. Franczek will keep clients apprised of OSHA developments on the COVID-19 front as they are released.

DOL Revokes Trump Policy Limiting Double Back Pay

The DOL has announced, effective immediately, it will return to pursuing liquidated damages, or double back pay, for employer wage/hour violations in the investigation stage.. Under the Fair Labor Standards Act (FLSA), employers that do not properly pay minimum wage and overtime can be held liable for an additional amount equal to the wages owed as liquidated damages. In litigation, the availability of liquidated damages requires a showing that an employer “willfully” violated the FLSA. In 2020, under the Trump administration, the pursuit of liquidated damages was scaled back requiring specific criteria to be met along with additional approval by the DOL Solicitor thereby limiting the use of the punitive action.

What’s to come: The agency’s rescission of the Trump era rule restores discretionary authority to DOL investigators to use liquidated damages as part of settlements for unpaid minimum wages or overtime. Employers can anticipate that audit by the DOL may now include a request for liquidated damages, making resolution of compensation violations more costly. Given the limited defenses available to employers in the wage/hour context, employers should proactively review their pay policies and practices and consider a policy review by counsel.