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 12, 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 four, the Administration’s labor and employment activity includes further reversal of Trump era initiatives at the National Labor Relations Board (NLRB), including a move to protect “Scabby the Rat”, the nomination of additional progressive pro-labor and pro-regulation officials to high level positions within the Department of Labor (DOL), appointment of a Senior and questions about the economic impact of the Administration’s proposed minimum wage increase.

Policy Changes

NLRB GC Ohr Continues Reversal of Trump Era Initiatives

Acting NLRB General Counsel Peter Ohr continues in his swift action to reverse Trump era initiatives, highlights include the following:

•    Scabby the Rat, the trademark inflatable rodent accompanying many labor protests, may have the last laugh after all. Ohr’s predecessor, Peter Robb, prosecuted unions for using the rat in demonstrations other than with a direct employer, claiming it was secondary picketing not protected by the First Amendment. Since stepping into his role, Ohr has asked the Board to remand the formal complaints issued against unions to the Regional Directors for dismissal, calling time spent on the legal challenges to be a “waste of valuable Agency resources.”
•    Ohr recently rescinded several Robb policy memos that implemented stringent financial recordkeeping and disclosure requirements by unions. The rescinded memos sought to provide individual workers with information about the financial implications of union membership and “meaningful access” to challenge union determinations of non-member fees. Ohr’s rationale for rescinding these memos was that they were inconsistent with the Board’s goal of encouraging collective bargaining and protecting workers’ rights under the National Labor Relations Act.
•    The NLRB has permitted Ohr to withdraw a former Robb brief that challenged the “contract bar” rule, a concept that is currently under review through a pending case. Under the “contract bar” rule, once a collective bargaining agreement has been executed, no representation or decertification elections are permitted for that bargaining unit until the agreement expires or three years have passed, whichever is earlier. Robb’s brief argued, among other things, that the contract bar, as it stands, restricts worker free choice because it can deny workers the chance to vote. The Board did not permit Ohr to submit a replacement brief because the deadline for submissions of briefs has passed.

What’s to Come: Ohr’s swift and aggressive rescission of Trump era policies is indicative of a dramatic shift of the agency towards what is shaping up to be the most aggressively pro-union agenda in decades.

CBO Raises Questions About Economic Impact of Biden Push for $15 Minimum Wage

The administration’s push for a $15 minimum wage by 2025, proposed as part of the pandemic relief package, has run into challenges. The Congressional Budget Office (CBO) released a report estimating that the increase could lead to the loss of about 1.4 million jobs despite lifting 900,000 people out of poverty.

What’s to Come: Whether to include the minimum wage provision as part of the stimulus package will continue to be hotly contested, even within the Democratic caucus. As the CBO is a nonpartisan office, the CBO report may give moderate Democrats some pause about proceeding with the minimum wage increase, or may cause the ultimate 15 dollar per hour goal to be decreased.  Currently, the federal minimum wage is $8.25, the Illinois minimum wage is $9.25, and the highest local minimum wage is  $15.00, beginning July 1, 2021, in Washington D.C.

Biden Nominates Julie Su as DOL Deputy Secretary

As projected, Julie Su has been nominated to serve as Deputy Secretary of Labor. Su is a graduate of Stanford University and Harvard Law School and is currently the secretary of the California Labor and Workforce Development Agency (LWDA). Prior to her role as secretary at the LWDA, Su served as the Labor Commissioner for the Division of Labor and Standards Enforcement, supporting the enforcement of California’s employee-friendly wage and hour laws. Su’s background also includes 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. Su is a longtime advocate for low-wage and immigrant communities.

What’s to Come: Su is known for backing heavily progressive, employee-friendly policies, and her appointment signals a move towards a “California” style employee-friendly push towards employment regulation at the federal level. It is anticipated that she and Labor Secretary nominee Marty Walsh will shape an aggressive, pro-employee and pro- union agenda at the DOL.

Employee Advocate Michele Evermore to be Appointed Senior Advisor on Unemployment Insurance

The Biden Administration has selected Michele Evermore for the newly created role of Senior Advisor on Unemployment Insurance within the DOL’s Employment and Training Administration.

Evermore currently works as a senior policy analyst at the National Employment Law Project, a left-wing nonprofit that supports low wage and unemployed workers. Evermore has been a prominent voice throughout the pandemic, both as an expert in explaining the federal assistance available and as a vigorous advocate on exploiting the inequities of unemployment assistance. Her Senior Advisor role within DOL was created to support the surge in claims for unemployment benefits stemming from the pandemic.

What’s to come: The administration’s selection of Evermore is a clear indication of the administration’s push to fulfill its campaign promise to support the issues from the gaps in jobless aid coverage and the support to efficiently process open claims.

Join Franczek Labor and Employment Webinar, “Biden’s First 30 Days”

For in-depth analysis and insight into the Labor and Employment Activity of the Biden Administration, please join Franczek attorneys Tracey Truesdale, Michael Warner and Jason Patterson in our upcoming labor and employment webinar, “Biden’s First 30 Days: Labor and Employment Update.” MCLE credit will be offered.