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

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

April 20, 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 thirteen, the Biden administration’s labor and employment activity includes the nomination for the Assistant Secretary of Disability and Employment Policy at the Department of Labor (DOL); the Senate committee vote on the DOL’s second in command, Julie Su; the White House push for small business support for the American Jobs Plan with the release of the fact sheet, “The American Jobs Plan Supports Small Businesses”; and a Senate bump up for the aggressively pro-labor PRO Act.

Leadership Changes

Biden nominates Taryn Williams for DOL Assistant Secretary of Disability and Employment Policy

President Biden recently nominated eight leaders to his administration, including Taryn Williams for the Assistant Secretary of Disability and Employment Policy.  Williams is the current managing director for the Poverty to Prosperity Program at American Progress which works on progressive policies focused on anti-poverty strategies. Williams’ career includes work in both nonprofits and in government administration.

What’s to come: Williams is no stranger to the White House—she served as associate director for public engagement and liaison to the disability community at the White House from 2014 through 2015 and as a policy adviser on the U.S. Senate Committee on Health, Education, Labor, and Pensions in 2012 and2013. As she has focused her career shaping policies that advance economic mobility, equity, and the education and employment of people with disabilities, it is anticipated she will use her role to aggressively advance policies benefitting those with disabilities.

Nomination of Julie Su for Deputy Secretary of Labor before Senate Committee this Week

The nomination of Julie Su as the second-in-command at the DOL will be up for vote before the Senate Committee on Health, Education, Labor, and Pensions this week. The committee will vote on whether to advance her nomination to the full Senate.

What’s to Come: Although Su has the support of President Biden, workers’ rights groups, union leaders, and some bi-partisan Asian-American lawmakers, the vote is expected to be close. Su faced scrutiny from Republicans during her confirmation hearing in March over her handling of California’s Employment Development Department and that Department’s slow response to the payout of $11B in fraudulent unemployment insurance claims. This week’s committee vote will be a pulse check on the Republican temperament to the administration’s labor-friendly policy and personnel changes since January.

Policy Initiatives

Biden Tries to Win Over Small Businesses with American Jobs Plan Fact Sheet

The White House continues its advancement of the American Jobs Plan aiming to grow support from small businesses. The administration released a fact sheet stating the plan, in conjunction with the Made in America Tax Plan, will “level the playing field between small businesses and large, multinational companies.” The fact sheet highlights several initiatives from the plan that claim to support and grow “mom and pop shops” including the following:

- Increase federal contracting opportunities for small businesses;
- Launch a historic effort to empower small business creation and expansion in underserved communities;
- Encourage small businesses to fully engage in the innovation economy;
- Help minority-owned manufacturing businesses access capital;
- Create a new financing facility for small manufacturers;
- Increase access to billions of dollars of lending and investment capital;
- Strengthen manufacturing supply chains and innovation ecosystems

What’s to Come:  As previously reported, the American Jobs Plan is predominantly about the modernization of the nation’s infrastructure, with the bulk of the spending planned for physical improvements to airports, roads, bridges, schools, and public housing. The plan contains several changes that will invariably be harmful to employers, including small businesses. Consider the following changes under the proposed law:

- The plan proposes to pass the PRO Act, a massive overhaul of federal labor law that would make sweeping changes to the National Labor Relations Act by overturning state “right to work” laws, giving the National Labor Relations Board (NLRB) the power to fine companies engaging in unfair labor practices, allowing union elections to be held off of company premises and to use electronic ballots, and allowing independent contractors to be unionized, among other things.
- The plan contains a request for funding for the DOL, NLRB, and EEOC to “strengthen the capacity of labor enforcement agencies to protect against discrimination, protect wages and benefits, enforce health and safety safeguards, strengthen health care and pensions plans, and promote union organizing and collective bargaining.”

These changes along with the administration’s push for a $15 federal minimum wage could have disadvantageous affects to small businesses and in particular, the “mom and pop shops.” An expansion of agency support presumably comes with an increase in investigations and penalties for workplace safety and health violations. Moreover, employers may have to cut jobs and other employee resources to pay for the increases brought forth by the expansion of unionized businesses and the increase in payroll brought by the federal minimum wage increase. Indeed, these proposed changes are mainly hard on the small businesses that do not produce the revenue of the large, multinational companies the administration aims to level. Employers should pay close attention to this piece of legislation as it has the potential to create significant changes in the workplace.

Capitol Hill Developments

Manchin Co-Sponsors PRO Act

On Monday, Senator Joe Manchin (Democrat, West Virginia) announce his co-sponsorship of the PRO Act, described above. As previously reported, if passed, the PRO Act would represent the most sweeping pro-labor change to federal labor since the New Deal. His sponsorship is significant, given that he is considered to be a critical moderate “swing vote” in the evenly divided Senate. A handful of other moderate Democratic senators have yet to co-sponsor the bill. The PRO Act passed the House last month along a largely party-line vote with 5 Republican senators voting in favor, and one Democratic senator voting against.  The ultimate passage of the PRO Act in its current form remains somewhat of a longshot, however, because it is likely ineligible for passage through budget reconciliation and even if it obtains unanimous Democratic support at least 10 GOP senators will need to vote for it in order to overcome a filibuster.  Manchin has previously announced that he is opposed to filibuster reform and on Monday he specifically stated that he hopes to advance the PRO Act on a bipartisan basis.