Towards the end of the second week of the new administration, it can already be seen that there will be significant effects on labor law. Here’s a round-up of some of the key actions that will transform the work and employment landscape for employers:
Secretary of Labor: On January 7, 2021, President-elect Biden announced his appointment as Boston Mayor Marty Walsh as Secretary of Labor. The Labor Secretary has the power to make regulatory changes that have a significant impact on employees and employers. Walsh is a past chairman of the Boston Building and Construction Trades Council, a group that represents ironworkers and electricians’ unions, among others. Walsh is expected to play a key role in implementing the pro-worker agenda pushed forward by President Biden during the campaign, including supporting the federal minimum wage increase and supporting the House-passed law to protect the Right to organize (PRO Act), which would strengthen workers’ ability to unionize.
National Labor Relations Board: In bold moves celebrated by union leaders, President Biden fired the top two lawyers from the National Labor Relations Board (NLRB). On the first day, he dismissed General Counsel Peter Robb, who, at President Biden’s proposal, refused to resign early. Alice Stock, Robb’s deputy, rose to the role of acting but was fired the next day. Both were considered management-friendly. The role of General Counsel is independent of the Board of Directors and is responsible for investigating and following up cases of unfair labor practices and for overseeing the NLRB’s field offices in the handling of cases. As such, the position has significant control over the direction of the NLRB and the application of the National Industrial Relations Act in the workplace, which could have a significant impact on union and non-union employers. The president appointed Peter Sung Ohr as acting general counsel until the president announces a candidate to be confirmed by the Senate. Ohr is a veteran of the NLRB who previously served as the Regional Director of the Chicago Regional Office (Region 13). His appointment by Ohr is seen as a step towards creating a more worker-friendly and union-friendly NLRB – and another landmark representative of the new government. During his 2014 position as regional director, Ohr believed in 2014 that Northwestern University college football players who have received scholarships for grants are employees with legal right to union formation (the union vote later failed and the full Washington board declined from exercising responsibility for a now disputed question). On other NLRB changes, President Biden appointed Lauren McFerran, the NLRB’s only Democrat, to chair the five-member agency. McFerran began serving on the Board of Directors in December 2014, having previously been administered, and was re-elected in July for a further term ending December 2024. Ohr has already revoked ten of Robb’s memos, describing them as “inconsistent” with National Labor Relations law, declared aim of promoting collective bargaining and protecting workers’ rights, or because they are out of date or contrary to Board of Directors law.
Equal Opportunities Commission: President Biden appointed Charlotte Burrows to chair and Jocelyn Samuels to vice-chair of the Equal Opportunities Commission (EEOC). Both are democrats. As Chairman, Burrows will be responsible for policy administration and implementation, as well as financial management and organizational development of the EEOC. As such, the Democrats will have significant control over the Commission, although they currently only hold two of the five seats. The next Republican’s term ends on July 1, 2022. At that point, President Biden is likely to appoint another Democrat to take majority control of the commission.
Executive Orders of the President: The President wasted no time using the power of the executive branch to set the direction of the government regarding the COVID-19 pandemic, racial inequalities and systemic racism, climate change and immigration. The jobs that have the greatest impact on employers include:
- Deferred Child Arrivals Ordinance (DACA) (Jan. 20, 2021): Restores the Obama-Biden administration’s Deferred Child Arrivals (DACA) Guidelines that facilitate removal Certain undocumented immigrants brought to the US have been postponed The United States complied with the law as children, stayed in school or served in the military, and allowed eligible individuals who pass a background check to obtain a temporary waiver from the Apply for deportation and apply for a temporary work permit.
- Implementing Ordinance to Protect the Health and Safety of Workers (January 21, 2021): Requests the Occupational Safety and Health Agency (OSHA) to review guidelines on safety at work during the COVID-19 pandemic and enforcement effort, including whether there are temporary emergency standards for COVID-19 which would have the force of law. You can find more information in our alert here. OSHA just released updated guidance on January 29, 2021, which will be detailed in an upcoming Bullard Alert.
- Federal Workforce Protection Executive Ordinance (January 22, 2021): Recommends a minimum wage of $ 15 / hour for federal employees and restores their bargaining power and protection by repealing the previous administration’s order that restricts and facilitates federal unions’ collective bargaining power End employment of federal employees.
- Executive Order Enabling All Qualified Americans to Serve Their Country in Uniform January 25, 2021: Revokes the previous government’s memorandum banning transgender people from serving in the military and instructs military leaders to take steps to ensure that any otherwise eligible transgender person who wishes to serve in the US take action.The US military can do so openly and free of discrimination, including establishing a process through which members of the transgender service can switch genders while on duty .
Center for Disease Control:
In support of (and complementary to) the President’s actions regarding COVID-19 travel restrictions, the Center for Disease Control (“CDC”) has issued two requirements regarding travel: one regarding mask requirements for all interstate carriage; and one relating to international air travel.
- Requirement for people to wear masks on means of transport and at traffic hubs (January 29, 2021, valid from February 1, 2021): To promote the ordinance to promote the safety of COVID-19 at home and abroad (January 21, 2021) CDC issued an order requiring all persons to wear masks while traveling on interstate public transport (with limited exceptions) – whether by plane, train or car. All persons must wear their masks properly (cover their nose and mouth) when getting on and off and during the entire journey, including in all transport hubs such as airports, bus stops and train depots. States, local, territorial, and tribal agencies, as well as private transportation companies and tour operators, may need better public health protection.
What’s next:
- In a fact sheet: President Biden’s new executive measures bring economic relief to American families and companies in the COVID-19 crisis published on January 22, 2021. President Biden outlined the efforts of the entire government to address the economic difficulties surrounding the pandemic. This includes instructing the Minister of Labor “to clarify whether workers have a federally guaranteed right to refuse employment that threatens their health, and if they do, they will continue to be eligible for unemployment insurance.” also his position that the federal government should only outsource contracts to employers who give their workers the salary and benefits they deserve and instructed its administration to take up a job that would allow him to do within the first 100 days Requiring Federal Government To Enact Executive Ordinance Contractors must pay a minimum wage of $ 15 and provide workers with emergency paid leave.
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