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 19, 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 five, the Administration’s labor and employment activity includes a new NLRB General Counsel appointee, an executive order revoking Trump’s industry-led apprenticeship program, the DOL’s continual withdrawal of Trump administration interpretations, and a vow from the EEOC Chair to push the agency to address workplace concerns related to the pandemic and systemic discrimination in the workplace.

Leadership Changes

Biden Selects Jennifer Abruzzo to be NLRB General Counsel

President Biden has selected Jennifer Abruzzo, special counsel for the Communications Workers of America, to be the general counsel of the NLRB. CWA is the largest communication and media labor union in the United States. Abruzzo was a former Deputy General Counsel under Obama and was temporarily the acting General Counsel before Trump’s appointee of Peter Robb. The White House touted Abruzzo’s career in worker’s rights leadership stating, “Abruzzo will work to enforce U.S. labor laws that safeguards the rights of workers to join together to improve their wages and working conditions and protect against unfair labor practices”.

What’s to Come: Abruzzo’s return to the NLRB as General Counsel is a signal of the Biden administration’s desire to pivot the Labor Board to a pro-labor agenda as quickly as possible. Abruzzo’s Senate confirmation hearing is anticipated to be contentious given Peter Robb’s unprecedented termination before the expiration of his four-year term.

Policy Changes

Biden Rescinds Trump Executive Order Establishing Industry-led Apprenticeship Program

President Biden issued an executive order revoking the Trump executive order that created the ‘Expanding Apprenticeships in America’ Program, an industry-led apprenticeship program which sought to deregulate the federal government’s role in creating and monitoring apprenticeship programs. The program moved the role of developing government-funded apprenticeship programs from the Labor Department to third-party private entities. In place of Trump’s program, Biden has endorsed the recently passed, National Apprenticeship Act of 2021, which expands the older apprenticeship program and enables Education and Labor departments to create and expand apprenticeships, among other things.

What’s to Come: The repeal of the former Trump program is an anti-regulatory loss for business interests, increasing government regulation and funding for the former apprenticeship program.

DOL Continues Withdrawal of Trump Administration Interpretations

The Department of Labor continues in its sharp left turn away from Trump era polices and interpretations, as it withdrew two opinion letters offering employer friendly interpretations of Fair Labor Standards Act Regulations under the Fair Labor Standards Act. Opinion FLSA2019-6 applied to “gig economy” workers who provide services to consumers through a virtual marketplace and held that such workers were independent contractors, not employees, and as such generally not covered by the minimum wage and overtime requirements of the FLSA. FLSA2019-10 addressed the compensability of time spent in a truck’s sleeper berth.

What’s to come: The DOL continues in its far swing to the left, packing a punch to Trump-era, employer friendly interpretations. The DOL withdrawals are “official rulings” of the Wage and Hour Division: as of the dates of withdrawal, the opinion letters can no longer be relied upon as a statement of the agency. The withdrawal of FLSA 2019-6 may signal a coming push by the DOL to cover “gig-economy” workers, such as ride-share drivers under the FLSA.  Additionally, while the withdrawal of FLSA2019-10 seems mainly as a clarification, employers that employ truckers whose sleep is included in the job may want to ensure their practices align with Department regulations.

EEOC Chair Calls Pandemic “Civil Rights Crisis,” Vows to Hold Hearing on Workplace Impact

Charlotte Burrows, the recently appointed Chair of the Equal Employment Opportunity Commission, made her first speech since being named chair earlier this week. Burrows addressed COVID-19 related workplace issues, calling the pandemic a “civil rights crisis,” vowing to hold a hearing to address workplace concerns stemming from the pandemic. Burrows also pledged to re-emphasize aggressive approach to eradicate discrimination including the enforcement of laws to combat enforcement efforts aimed at challenging systemic discrimination and targeting outreach to veterans facing discrimination.    

What’s to Come: Burrows is a long-standing advocate for strong civil rights protections. Her ability to push an aggressive enforcement agenda may be slowed somewhat in the short term as the Commission is expected to have a 3-2 Republican majority until the next expiration of a Republican Commissioner’s term in July 2022.