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President Biden did not waste any time after taking office on January 20, 2021. Shortly after the Presidential Oath of Office was administered, Biden signed 17 executive actions, which either impact the workplace or provide insight into what may be forthcoming under the new administration for employers.

A Flurry of Executive Orders on Day One

Biden issued a memorandum to agencies to freeze all last-minute regulations put in motion by the prior administration as President Trump was leaving office. Notably, these regulatory “freeze memos” are not uncommon for incoming administrations to issue. This pause on the prior administration’s last-minute regulations will give the Biden administration the opportunity to evaluate the so-called “midnight regulations” and determine if they will become final, be amended, or rescinded altogether.

He also issued an Executive Order reinforcing that Title VII prohibits the federal government from discriminating on the basis of sexual orientation or gender identity. The Order references the recent Supreme Court case of Bostock v. Clayton County (blogged about here). Specifically, the Order states “[i]t is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The Order notes that laws that prohibit sex discrimination (specifically referencing Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act) also prohibit discrimination on the basis of gender identity or sexual orientation.

Biden issued an Executive Order reversing the prior administration’s September 2020 Executive Order that prohibited federal contractors from using any workplace training that inculcates in their employees certain “divisive concepts” such as critical race theory (blogged about here). President Biden’s Order recognizes that “advancing equity requires a systematic approach to embedding fairness in decision-making processes…”  It further states that “[i]t is therefore the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government.” Whether the Biden administration will mandate training (such as diversity, inclusion and equity training) as a method of advancing equity remains to be seen.

The same Executive Order also requires all federal agencies to conduct an equity assessment and report their findings within 200 days, and must provide a plan on how to remove barriers to opportunities which currently exist in their policies and programs. In addition, the Order establishes an Equitable Data Working Group to gather Federal datasets by race, ethnicity, gender, disability, income, veteran status, and other key demographic variables so the government can measure and advance equity. While the equity assessment and data collection portions of the Executive Order apply only to federal agencies, it would not be surprising if the Biden administration requires similar type action from private employers at some point.

With respect to workplace safety, Biden issued an Executive Order focusing on COVID-19 in the workplace. The Order specifically states that “[i]t is the policy of my Administration to protect the health and safety of workers from COVID-19” and referencing issuing “science-based guidance.” The Order requires the Occupational Safety and Health Administration (OSHA) to issue revised guidance to employers on workplace safety during the pandemic within 2 weeks. It also directs OSHA to consider whether any emergency standards on COVID-19 (including with respect to masks in the workplace) are necessary for businesses, and for any such standards to be issued by March 15, 2021.

Biden’s efforts to effectuate more employee-friendly changes didn’t stop with executive orders. He also made changes in leadership in federal agencies tasked with labor and employment issues.

Big Changes in NLRB Leadership

Biden delivered on his promise to terminate the General Counsel of the National Labor Relations Board, Peter Robb. After he returned to the White House as the President, Biden gave Robb until 5:00 pm to resign or be terminated. Robb refused Biden’s “request to resign” and was promptly terminated at 5:00 pm. Robb’s chief assistant, Alice Stock, was terminated the following day. Peter Sung Ohr, the Regional Director of the Chicago Region (Region 13), has been appointed as the Acting General Counsel. The President’s power to appoint interim positions has been circumscribed by Congress. The efficacy of Congress’ action was litigated after President Obama appointed Lafe Solomon as the General Counsel and was sustained by the courts.

Biden appointed Lauren McFerran to be the Chairman of the National Labor Relations Board replacing John Ring. Ring will remain as a Board member until his term expires.  In addition, there is one open seat on the five member NLRB. That seat is a Democratic seat, and may go to Jennifer Abruzzo. Abruzzo was a career Board employee, who many will remember was appointed as the interim General Counsel when Richard Griffin’s term expired in the first year of the Trump Administration. She was approved by then Board Chairman Philip Miscimarra to be the Regional Director of the NLRB’s Regional Office in Baltimore. The Office of Personnel Management then refused to appoint her and she left the NLRB taking a position at the Communication Workers of America (a labor union). Ironically, the CWA was one of the unions that was most vocal in demanding Robb’s ouster.

Employers interested in a glimpse at the direction of the Board would be well served to brush off the General Counsel Memorandum issued by Richard Griffin, specifically GC 14-01. And if a handbook review is on the list of projects for 2021, employers would be well served to review GC Memo 15-04. Before making wholesale changes, however, employers should review the decisions of the DC Circuit Court of Appeals related to handbooks and discipline, as a number of its decisions repudiated and rejected the Board’s slanted reading of the statute making change by the Biden Board difficult, if not impossible.

Former Union Leader Nominated as Secretary of Labor

Biden nominated Boston Mayor Marty Walsh as Secretary of Labor. If confirmed, as head of the DOL, Walsh could have a significant impact on policies impacting employers, including those related to workplace safety, wage and hour, joint employment, independent contractors, and leave law. Walsh is a former union leader, and if confirmed, would be the first union member in nearly half a century to be Labor Secretary. While it remains to be seen, we anticipate that Walsh would focus on more worker-friendly policies.

Major Leadership Shifts at the EEOC

Biden also named Commissioner Charlotte Burrows (Democrat) as the Chair of the EEOC, with Janet Dhillon (Republican) stepping down from the role. Commissioner Jocelyn Samuels (Democrat) will serve as Vice Chair of the EEOC, replacing Keith E. Sonderling (Republican). As Chair, Burrows will have authority over the administration and implementation of policy for the EEOC. According to the EEOC, Burrows will focus specifically “on initiatives to combat harassment, foster pay equity, and advance diversity and inclusion.” However, certain policy initiatives require majority support of the Commission, and the Republicans still maintain the majority (3 to 2). The Republican majority will continue until Dhillon’s term expires on July 1, 2022. Until there is a Democratic majority, Burrows may face difficultly implementing any major policy changes.

Obama-era EEOC Chair to Lead the OFCCP

In addition, President Biden named Jenny Yang to head the Office of Federal Contract Compliance Programs. Yang previously served as EEOC Chair during the Obama Administration. While serving on the EEOC, Yang led the efforts to require companies to report “component 2” pay data for EEO-1 reports, which was later quashed by the Trump Administration. As EEOC Commissioner, in addition to prioritizing the collection of pay data, Yang sought to expand anti-discrimination protections to LGBTQ+ workers.

OSHA Leadership Change Likely to Bring Tougher Enforcement

And last but not least, Biden also named Jim Frederick as OSHA’s Deputy Assistant Secretary. For 25 years, Frederick worked in the United Steelworkers HSE department. Given Frederick’s history, employers can likely expect to see tougher workplace safety enforcement.

We anticipate Biden will continue changing the US labor and employment landscape at a dizzying pace. For help navigating the latest developments, contact your Baker McKenzie employment attorney.