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.

February 5, 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 three, the Biden administration continued its full court press on labor and employment issues, selecting a Deputy Labor Secretary of the DOL, nixing a number of Trump-Era NLRB policies as well as the DOL’s voluntary wage/hour compliance program, and issuing enhanced COVID-19 safety guidance through OSHA.

Policy Changes

Per Biden’s Order, OSHA Releases New COVID-19 Safety Guidance

As previously reported, the U.S. Occupational Safety and Health Administration (OSHA) has issued enhanced COVID-19 safety guidance to help employers and their employees implement a COVID-19 prevention program and better identify risks which could lead to exposure and infection. OSHA makes clear that the guidance is not “a standard or regulation, and it creates no legal obligations.” Instead, the “recommendations are advisory in nature [and] informational in content.” The revised guidance identifies several key elements of a COVID-19 prevention program including assigning a workplace coordinator, conducting hazard assessments to identify exposure to COVID-19 by employees, provision of telework and supportive policies for high risk employees, implementing trainings on the employer’s COVID-19 policies and procedures, and employee screening and testing, among other things.

What’s to come: Currently, the guidance applies only to private sector employees. However, public sector employers covered by the Illinois Occupational Safety and Health Act, including school districts, should be mindful of the revised guidance, because Illinois OSHA generally follows federal OSHA on substantive issues. Extension of OSHA’s authority to the public sector is a component of the President’s COVID-19 relief plan, as yet to be formally presented to Congress. Because OSHA’s jurisdiction is defined by the OSH Act, Congressional action will be required to amend the Act and expand the agency’s jurisdiction to the public sector.

Newly Appointed NLRB General Counsel Rescinds Numerous Trump-Era Policies

Freshly appointed National Labor Relations Board Acting General Counsel Peter Sung Ohr took quick action in his new role, rescinding several internal memoranda issued by his predecessor under the Trump administration. Ohr announced these changes in a memorandum released Monday, just one week after his appointment by the administration. The memorandum states, “[T] he policy of the United States is to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment.” Ohr’s reasoning for the rescission stated that a number of the memoranda were either “inconsistent” with the Board’s goal of encouraging collective bargaining and protecting workers’ rights under the act or were “no longer necessary.”

What’s to come: The purpose of General Counsel memoranda is to provide instruction and policy guidance to the agency, thus shaping the Board’s position on labor law interpretations at both the national and regional level. Interestingly, the first of the rescinded memoranda was former General Counsel Peter Robb’s memorandum providing instruction for the analysis of facially neutral workplace policies that could interfere with employee rights under the NLRA proceeding from the Board’s decision in Boeing Co., 365 NLRB No. 154 (2017). The Boeing decision was applauded by employers for establishing a balancing test between the employer’s legitimate business interest for a particular policy on the one hand and the nature and extent of the potential impact on NLRA rights on the other. We anticipate that the Board may reverse and apply the stricter scrutiny employer policies faced under the Obama Board. Additional changes of note by Ohr include the rescissions of a Robb memorandum regarding neutrality agreements and several directives that had placed more stringent burdens on unions. Ohr notes that a future memorandum setting forth new policies will issue in the near future. Ohr’s prompt action is indicative of a dramatic shift in the agency’s priorities and further evidence of the aggressive sense of urgency of the new administration.

DOL Terminates its Voluntary Wage/Hour Compliance Program

On January 29, the U.S. Department of Labor (DOL) announced it was terminating its voluntary wage/hour compliance program, Payroll Audit Independent Determination (“PAID”), effective immediately. PAID was a self-audit program that enabled an employer to voluntarily report Fair Labor Standards Act (FLSA) wage violations to the DOL’s Wage and Hour Division. The PAID program was an amnesty program that allowed employers to self-report wage violations, submit back pay calculations to DOL and enter into a DOL-supervised agreement to pay monies owed for a two-year period. In return, the DOL would supervise and approve the release of claims by individual employees for the underpayment and agree not to seek a third year of back pay and liquidated damages or to audit the employer to determine the reason for the underpayment. By statute, settlements and releases of FLSA claims require DOL or court approval, and the PAID program satisfied this key requirement.

What’s to Come: While the idea of a voluntary compliance program had some surface appeal, its value to employers was always somewhat questionable, particularly because supervised settlements under the program resolved only FLSA claims, leaving employers vulnerable to claims under state law. The DOL did not explain why it was terminating the program. However, it comes as no surprise, as each recent shift between Democratic and Republican administrations has seen a corresponding shift between a Republican emphasis on “compliance assistance” and Democratic administrations pursuing more aggressive enforcement.

Changes to Leadership

Biden Preparing to Nominate Julie Su as DOL Deputy Secretary

Julie Su, California Labor Secretary, is slated to become the second highest ranking official at DOL. Su, a graduate of Stanford University and Harvard Law School, is a longtime advocate for low-wage and immigrant communities. Her prior work includes serving as California’s Labor Commissioner and acting as the Litigation Director at Asian Americans Advancing Justice-Los Angeles, the nation’s largest legal and civil rights organization for Asian Americans, Native Hawaiians, and Pacific Islanders.

What’s to Come: As Su is nationally recognized as an expert on workers’ rights and civil rights, it is anticipated she will work with Marty Walsh to shape a pro-employee agenda at DOL.

Marty Walsh pledges to Support Workers, Expand Workers Rights at Labor Secretary Confirmation Hearing

On Thursday, the Senate Committee held the Labor Secretary confirmation hearing for Boston Mayor Marty Walsh. Walsh, a former union worker and longtime union advocate, pledged to support policies that protect and expand workers rights and the economy. Walsh addressed a number of contentious issues including enforceable workplace safety rules through OSHA and a $15.00 minimum wage. Walsh also affirmed his support for, Protecting the Right to Organize Act, the labor law overhaul bill recently proposed by Democrats. The bill would impose financial penalties on employers that violate workers’ rights and nullify state laws letting workers refuse to pay dues, among other things. A vote based on the committee’s recommendation on Walsh is expected to be scheduled as soon as possible.

What’s to Come: Walsh’s longtime commitment to unions and workers’ rights coupled with pledge to expand these rights is a clear indication of an aggressive pro-employee agenda for the Department of Labor.