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

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

March 22, 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 nine, the Biden administration’s labor and employment activity includes Senate movement toward confirming Labor Secretary nominee Marty Walsh, leadership changes at the Department of Labor’s Wage and Hour Division, and OSHA’s announcement of a national emphasis program on COVID-19.

Leadership Changes

Senate Confirmation of Marty Walsh as Labor Secretary Expected as Early as Monday

Marty Walsh is expected to be confirmed by the Senate as the Secretary of the Department of Labor (DOL) as early as this Monday. This comes after action on Thursday to close the debate over Walsh’s appointment.

What’s to come: The two-term Democratic mayor from Boston has pledged to push a vigorous worker advocacy agenda, further advancing the aggressive labor-friendly policies of the Biden administration. Nevertheless, Walsh, who has a reputation as a known consensus builder, has expressed willingness to work with Republicans over employer concerns.

Deputies Installed at DOL’s Wage and Hour Division

DOL’s Wage and Hour Division (WHD) has rehired long-time staffer Patricia Davidson as Deputy Administrator. Davidson joins Principal Deputy Administrator Jessica Looman while the chief Administrator role remains vacant.

With more than 30 years of service at WHD, Davidson had been the most senior career official at the division when she transferred to the Office of Federal Contract Compliance Programs in 2020. Davidson departed for the OFCCP not long after former George W. Bush associate White House counsel and Trump appointee Cheryl Stanton joined as Wage/Hour Administrator in April, 2019.

Stanton’s resignation from WHD coincided with Looman’s appointment as Principal Deputy Administrator on Inauguration Day. Looman is a Minnesota native and former construction union official who was appointed to her role on Inauguration Day.

What’s to come: Davidson’s hire coincides with the division’s efforts to eliminate Trump-era regulations on joint employment and independent contractor status and abandonment of the PAID program. Her return underscores the Biden administration’s plan to return to the Obama-era approach to wage enforcement where employers were assessed double damages for violations and targeted for independent contractor misclassification.

Policy Changes

DOL Revokes Trump-Era Policy on Wage/Hour Enforcement, Restoring Authority to Local Agency Staff

The DOL has revoked a Trump-era policy requiring centralized leadership approval for employer wage violations, restoring authority to WHD regional and district personnel to take enforcement actions for employer wage violations.

What’s to come: Under the Trump administration, enforcement actions for wage violations required final approval from top WHD leadership, slowing wage/hour investigations and litigation. With enforcement power now restored to WHD’s five regions and 50+ district offices, wage/hour investigations and agency-initiated litigation to pursue employer violators is expected to increase.

In case you missed it . . .

OSHA Launches Nationwide Program to Inspect Workplaces for COVID-19-Related Violations

Late last Friday, OSHA announced its new national emphasis program (NEP) on COVID-19. The COVID-19 NEP is designed to protect high-risk workers from COVID-19 hazards. The program also prioritizes for OSHA inspection employers that retaliate against workers who complain about unsafe conditions.

What’s to come: With COVID positivity rates going down, vaccinations increasing, the country reopening and President Biden having committed to doubling the ranks of OSHA field personnel, employers should expect OSHA compliance officers to resume conducting onsite inspections, whether under the COVID-specific NEP or another standard. More inspections mean more citations mean more penalties. Franczek’s Workplace Safety Team is prepared to help clients successfully navigate interactions with both federal and state OSHA. Our one-page quick reference guide on how to manage through an OSHA inspection is available by contacting Tracey Truesdale.