The First 100 Week 14: Pro-Labor and Judicial Nominations Continue and DOL Focuses on Worker Status, Pushes for More Investigators

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

April 29, 2021

Stay tuned for Franczek’ s comprehensive recap of the Biden administration’s labor and employment initiatives of the first 100 days in office that will impact employers.

In the final week of first 100 days of the Biden administration, significant labor and employment activity includes a Department of Labor (“DOL”) official and two judicial nominations sent to the Senate, a push from the DOL Wage and Hour Division for the expanded enforcement, a call to employers to provide paid time off for employees to get vaccinated, and the White House’s release of fact sheets signaling the administration’s strong support for union-friendly policy initiatives.

Leadership Changes

Taryn Mackenzie Williams Nomination as DOL Assistant Secretary for Disability and Employment Policy Sent to Senate

As previously reported, 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 has focused her career shaping policies that advance economic mobility, equity, and the education and employment of people with disabilities. 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 from 2012 through 2013. It is anticipated she will use her role to aggressively advance policies benefitting those with disabilities. This includes strategies that shape policy implementation and investigation.

Judicial nominees Candace Jackson-Akiwumi and Ketanji Brown Jackson sent to Senate

The judicial nominations for “trailblazers” Candace Jackson-Akiwumi and Ketanji Brown Jackson have been sent to the Senate. Candace Jackson-Akiwumi is nominated to the Seventh Circuit Court of Appeals in Chicago while Ketanji Brown Jackson is nominated to the District of Columbia Circuit Court of Appeals.

What’s to come: As previously reported, Jackson-Akiwumi would become the only Black woman on the Seventh Circuit bench which covers Illinois, Indiana, and Wisconsin. Many view Judge Ketanji Brown Jackson’s appointment to the D.C. Circuit as a pre-cursor to her ultimate nomination to the U.S. Supreme Court when an opening on the Court next arises. Biden’s nominees are a clear indicator of the administration’s continuous push to diversify positions of power across the government.

Policy Changes

DOL Wage Lead Focuses on Worker Status, Pushes for Enforcement of Wage Violations

Jessica Looman, the principal deputy administrator of the DOL’s Wage and Hour Division is widening the authority of DOL investigators to monitor payroll violations. Looman recently oversaw the withdrawal of Trump-era rules that made it easier to classify workers as independent contractors and heightened the threshold for when multiple companies are considered joint employers who share liability for wage violations. Accordingly, now investigators will also be focusing on independent contractor misclassification and joint employment relationships when they investigate potential payroll violations. Looman is also pushing for increased funding to hire as many as 25% more investigators to support with investigations and enforcement.   

What’s to come: The increased scope of investigations coupled with the rapid changes in policies and increased number of investigators across the country brings concern about the clarity and consistency of the upcoming Wage and Hour Division determinations on joint employment and classifications of employee versus contractors. At the very least, employers can expect to see increased enforcement actions across the country. Given these changes, employers may want to consider re-visiting employee and independent contractor classifications, and FLSA exempt classifications with their legal counsel.

Biden Pushes Employers to Provide PTO for Employees to Get Vaccinated

As part of his effort to get more Americans vaccinated, President Biden is calling on all employers to offer full pay to their employees for any time off needed to get vaccinated and for any time it takes to recover from the after-effects of vaccination. He will announce a paid leave tax credit that will offset the cost for employers with fewer than 500 employees to provide full pay for any time their employees need to get a COVID-19 vaccination or recover from that vaccination.

What’s to come: Employers will need to prepare financially and logistically for employee time off both for the vaccination and for time for employees who experience after-effects of vaccination. As employers create processes to implement and document the vaccination PTO, they should be careful to comply with employee privacy laws including and related to handling employee medical information.

Biden Tries to Draw Employee and Women Support with American Jobs Plan Fact Sheets

The White House continues its advancement of the American Jobs Plan aiming to grow support from workers, unions, and specifically women workers. The administration released two facts sheets, “The American Jobs Plan Empowers and Protects Workers” and “The American Jobs Plan Will Support Women’s Employment” aiming to protect workers and women’s employment through the following measures:

- Passing the Protecting the Right to Organize (PRO) Act;
- Providing a federal guarantee for public sector employees to bargain for better pay and benefits and the working conditions they deserve;
- Empowering historically excluded workers;
- Creating “good” jobs in construction, transportation, caregiving, and manufacturing;
- Pairing job creation efforts with next-generation training programs;
- Building the capacity of the existing workforce development system;
- Ensuring federal agencies have the resources to protect workers.

The “American Jobs Plan Will Support Women’s Employment” adds the following measures:

- Developing the workforce and new career pathways to strengthen the pipeline for more women and communities of color;
- Expanding job and entrepreneurship opportunities for women;
- Investing in gender-equitable workforce development programs;
- Supporting people re-entering communities in accessing employment;
- Helping women-owned small businesses and minority business enterprises access capital and scale through over $30 billion in investments.

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 Act contains several changes that will invariably create labor and employment-related challenges for employers. 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 employer premises and to use electronic ballots, and allowing independent contractors to be unionized, among other things.

- The plan proposes to provide a federal guarantee for “union and bargaining rights for public service workers” including in current right-to-work states. This change would override state laws allowing for the employee’s right to work status and collectively give bargaining to every public-sector employee.

- 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.”

As previously stated, these changes along with the administration’s push for a $15 per hour federal minimum wage could impact 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.