United States: Promises Made To Be Delivered: Expansion Of Protections And Enforcement Under Biden Administration

President Biden promised workers significant workplace protections during his campaign. The quick regulatory actions and immediate leadership changes at OSHA, EEOC, NLRB and DOL signal the intent of his administration to deliver on his promise.

During his presidential campaign, President Biden promised more employment protections for workers, increased wages and improved workplace safety. President Biden also announced his intention to appoint leadership across the federal agencies who share his views and are committed to enforcing workplace laws aggressively. Following his inauguration, he issued a regulatory freeze, signed several executive orders, and made top-level agency appointments to bring changes to a variety of federal labor and employment laws to make good on his promise.

Regulatory Freeze

While campaigning, President Biden criticized the Trump Administration for its attempt to effect changes to employment-related agency guidance and rulemaking in its final days. To remedy this, on his first day in office on Jan. 20, 2021, President Biden issued a "regulatory freeze" memorandum directing all agencies, including the U.S. Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC), to immediately halt all non-emergency rulemaking so that the Biden Administration and its appointees could review and approve the rules before publication and finalization.

Under the regulatory freeze, the DOL rescinded three opinion letters on employee classification and tip pooling under the Fair Labor Standards Act (FLSA) that were advanced by the DOL in the last few days of the Trump Administration. In particular, the DOL has withdrawn two opinion letters that would have made it easier for employers to classify certain workers as independent contractors under the FLSA. The DOL also has withdrawn a tip pooling opinion letter that addressed whether a restaurant could institute a tip pool under the FLSA that includes both servers for whom the employer takes a tip credit and non-servers for whom a tip credit is not taken.

The DOL also announced the rescission of the Trump Administration's final rule that interpreted joint employer status under the FLSA. Under the FLSA, an employee can have more than one employer for the work they perform, and both employers are responsible for worker protections and may be liable for FLSA violations. The rescinded rule adopted a four-factor test to assess whether an employer could be jointly liable for FLSA violations. The test required the employer to exercise significant control over the employee's work rather than reserving authority to control the work. In rescinding the rule, the DOL concluded that it was inconsistent with the text and intent of the FLSA, as well as the Department's prior guidance on joint employment.

The EEOC has withdrawn rules under the regulatory freeze as well. On Jan. 7, 2021, the EEOC released proposed rules regarding wellness programs under Title I of the Americans with Disability Act and Title II of the Genetic Information Nondiscrimination Act of 2008. The proposed rules would have reestablished regulatory limits on wellness program incentives offered by employers that had been invalidated several years ago by a federal court. The regulatory freeze was issued before the proposed rules were published in the Federal Register. In response to the freeze, the EEOC announced that it had withdrawn the proposed wellness regulations.

Executive Orders

In his first few months in office, President Biden signed several employment-related executive orders to increase protections for workers. For example, the Executive Order on "Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation" requires all federal agencies to interpret Title VII of the Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity. The order requires federal agencies to take steps to protect the rights of LGBTQ+ persons by ensuring that federal antidiscrimination laws that cover sex discrimination also prohibit discrimination on the basis of sexual orientation and gender identity.

In his Executive Order on "Advancing Racial Equity and Support for Underserved Communities Through the Federal Government," President Biden rescinded Executive Order 13950 issued under the Trump Administration. Executive Order 13950 had placed restrictions on federal contractor diversity training and directed the DOL's Office of Federal Contractor Compliance Programs (OFCCP) to establish a public hotline for reports of unlawful training materials. In December 2020, a federal court issued an injunction prohibiting the OFCCP from implementing Executive Order 13950. In response to its revocation, OFCCP closed its investigations of employee complaints relative to diversity training and the public hotline.

In his Executive Order on "Protecting Worker Health and Safety," President Biden instructed the Secretary of Labor, through the DOL's Occupational Safety and Health Administration (OSHA), to issue revised employer guidance to protect workers from COVID-19 and to take additional enforcement measures to protect workers. In response to this executive order, OSHA announced the launch of a nationwide program to prioritize its enforcement efforts to focus first on employers that put the largest number of workers at serious risk of contracting the virus and those that retaliate against workers for workplace complaints. OSHA also has updated its interim enforcement response plan to prioritize the use of on-site workplace inspections over remote investigations.

President Biden also signed the Executive Order on "Worker Organizing and Empowerment" to create a White House task force to promote labor organizing. The task force, led by Vice President Kamala Harris, is to issue recommendations on how the federal government can help workers join labor unions and bargain collectively through new and existing legal authority and policies.

Most recently, on July 9, 2021, President Biden signed the Executive Order on "Promoting Competition in the American Economy," which directs the establishment of a "whole-of-government" policy to promote competition in the American economy. Rather than impose any specific new rules, the executive order provides instructions to several federal agencies to implement 72 initiatives designed to promote competition in a number of industries, including technology, pharmaceuticals, aviation and telecommunications. Among other things, the executive order encourages the Chair of the Federal Trade Commission to consider using the Commission's statutory rulemaking authority to limit the ability of employers to use noncompetition agreements that may unfairly limit worker mobility.

Agency Appointments

President Biden has made several swift appointments to key federal agencies, including OSHA, EEOC, the National Labor Relations Board (NLRB) and DOL, to pursue the workplace priorities of his administration. On the day of his inauguration, President Biden appointed James Frederick, a workplace safety advocate, as Acting Deputy Assistant Secretary for OSHA. Frederick previously served as the Assistant Director of the Health, Safety & Environment Department of the United Steel Workers, the largest industrial union in North America. He will lead OSHA until Senate confirmation of President Biden's nominee, Doug Parker, as Assistant Secretary for OSHA. Parker currently is the Chief of California's Division of Occupational Safety and Health.

The day after his inauguration, President Biden named Democratic EEOC commissioners Charlotte Burrows and Jocelyn Samuels as Chair and Vice Chair, respectively, of the EEOC. Although the EEOC currently comprises three Republican and two Democratic commissioners, Chair Burrows will control the administration and implementation of agency policy. President Biden also named Gwendolyn Young Reams, a veteran EEOC attorney, as Acting General Counsel for the Commission after terminating the EEOC General Counsel appointed by President Trump. The general counsel is responsible for managing, coordinating and directing the Commission's enforcement litigation program. The program is designed to attain maximum compliance with federal employment laws prohibiting discrimination in employment.

President Biden also terminated NLRB General Counsel Peter Robb. The president then appointed longtime NLRB attorney and Regional Director Peter Sung Ohr as Acting NLRB General Counsel to temporarily lead the NLRB until Senate confirmation of Biden's pick for general counsel. The general counsel is responsible for the investigation and prosecution of unfair labor practices cases and supervision of the processing of cases by the NLRB field offices. As Acting General Counsel, Ohr immediately began rescinding Trump-era general counsel memos that he considered inconsistent with the purpose of the National Labor Relations Act. Ohr began serving as Deputy General Counsel when Jennifer Abruzzo, former Special Counsel for Strategic Initiatives for the Communications Workers of America (CWA), was sworn in as General Counsel of the NLRB on July 26, 2021. Before her work with the CWA, Abruzzo was a career NLRB attorney and served as Acting General Counsel and Deputy General Counsel of the NLRB. Her familiarity with the Board and general counsel role will enable Abruzzo to advance the pro-labor and pro-union initiatives of the Biden Administration.

On March 22, 2021, former Boston Mayor Marty Walsh was confirmed as U.S. Secretary of Labor. During his tenure as the Mayor of the City of Boston, Secretary Walsh, a former union president and state representative, supported a statewide increase in the hourly minimum wage to $15.00 as well as paid sick leave and parental leave for workers. Secretary Walsh is expected to advance the priorities of the Biden Administration to strengthen employment protections for workers, as is former California Labor Commissioner Julie Su, who was confirmed as Deputy Secretary of Labor. Deputy Secretary Su has fought for low-wage and disenfranchised communities her entire distinguished legal career and is recognized nationally as an expert on workers' rights and civil rights.

In June 2021, President Biden nominated David Weil as Administrator of the DOL's Wage and Hour Division. The administrator is responsible for enforcement of minimum wage and overtime pay requirements under the FLSA. Weil interpreted those requirements broadly when he held the administrator position from 2014 to 2017 under the Obama Administration. He also spearheaded worker classification investigations that often led to enforcement actions for the improper classification of workers as independent contractors.

Expected Expansion

President Biden promised workers significant workplace protections during his campaign. The quick regulatory actions and immediate leadership changes at OSHA, EEOC, NLRB and DOL signal the intent of his administration to deliver on his promise. Employers should anticipate continued pro-labor, pro-union efforts and brace themselves for significant changes in employment laws, regulations and enforcement. Antidiscrimination, pay equity, paid leave, worker safety, and collective bargaining and labor relations are among the employment areas where the greatest activity is expected.

Originally published by New Jersey Law Journal.

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