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The First 100 Days of the Biden Administration, and Key Takeaways for Employers

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In September 2020, then-candidate Joe Biden promised organized labor that, if elected, he would be the "strongest labor president you've ever had." In his first 100 days in office, now President Biden has acted quickly and aggressively to make good on this pledge.

Some of these efforts have quickly come to fruition; the fate of others remains unclear and are likely to require congressional approval — no certainty in a Congress where both the House of Representatives and Senate are operating with historically narrow margins. What is abundantly clear is that the new administration is committed to revisiting prior administration policies and moving decisively to advance its own pro-labor agenda, and in only 100 days, it has taken significant steps to do so.

Minimum Wage

The president has thrown his strong support behind efforts to increase the federal minimum wage to $15 per hour, and phase out the so-called "tipped minimum wage" for food service and hospitality workers, as well as the subminimum wage for certain workers with disabilities. The U.S. House of Representatives has already passed a bill increasing the minimum wage, but the measure currently lacks the 60-vote supermajority necessary to clear the U.S. Senate under its regular legislative rules. During consideration of the American Rescue Plan Act, the administration's first major policy proposal providing and extending economic relief in response to the COVID-19 pandemic, Senate Democrats were unsuccessful in their attempt to include a minimum wage increase by way of fast-track "budget reconciliation" procedures, which require only a simple majority vote for approval. While the minimum wage proposal was deemed ineligible for fast-track treatment due to Senate rules, it is unclear that an increase of this magnitude would have the unanimous support of all Senate Democrats (given the 50-50 split in the Senate, all 50 Democrats would need to support such a measure, assuming that all 50 Republicans opposed it, and Vice President Kamala Harris cast a tie-breaking vote in its favor). Congressional leadership has vowed to return to this issue and is actively seeking a compromise that could enjoy unanimous Democratic support.

Executive Action

President Biden has also made skillful use of the broad executive power of the presidency to advance his agenda, and reverse policy positions taken by his predecessor. Almost immediately upon his inauguration, the president issued an executive order repealing the prior administration's order which sought to limit federal contractors and recipients of federal grants from discussing "divisive" topics in workplace trainings on issues of diversity and inclusion, including what the prior order termed "stereotyping" and "scapegoating" on the basis of race or sex. Biden Revokes Trump Executive Order on Diversity and Inclusion, Adopts Policies 'Advancing Racial Equity' and Extending LGBT Protections

The president has also by way of executive order established a "Task Force on Worker Organizing and Empowerment," which seeks to promote his administration's "policy of support for worker power, worker organizing, and collective bargaining." More about the Task Force can be found here.

The PRO Act

The president has proposed a massive infrastructure package, which includes as its labor centerpiece the call for Congress to pass the "Protecting the Right to Organize" Act (the "PRO Act"). By way of background, the PRO Act is the most dramatic rewrite of federal labor relations law in generations and encompasses more than 50 significant changes to current law that would overhaul the NLRA for the first time in more than 70 years.

For more on the PRO Act: House Passes Sweeping Labor Law Reform

Administrative Action

Even prior to the confirmation of Marty Walsh (formerly mayor of Boston and president of the Boston Metropolitan District Building Trades Council, a union umbrella group) as secretary of labor, the Department of Labor (DOL) has taken swift and aggressive action to revisit Trump administration policies around a host of contentious topics, and will certainly seek to replace them with policies more in line with the current administration's thinking. Regulations the Department has proposed to roll back were generally considered more employer-friendly; it is likely that new rules will purport to be more favorable to employees. It is also widely expected that the president will name David Weil, who was formerly administrator of the Wage and Hour Division during the Obama administration, to that post again. Weil has strongly advocated that most workers should be statutory employees, and has been highly critical of the independent contractor model, particularly in the gig economy.

Independent Agencies

The Biden administration has also taken quick action with respect to key personnel at non-cabinet agencies responsible for enforcement of labor and employment laws. While the full extent of these actions has yet to be seen, it is clear that, where possible, the White House has attempted to replace key political appointees deemed insufficiently in line with the administration's pro-labor policies.

National Labor Relations Board. The National Labor Relations Board (NLRB) is charged with enforcing federal laws regarding collective bargaining and union organizing. The five-member NLRB currently consists of one Democrat, three Republicans, and one vacancy. Shortly after his inauguration, President Biden designated Democratic Board Member Lauren McFerran to chair the agency. Chair McFerran is limited in her ability to move forward on policy matters that require NLRB approval, insofar as Republicans currently hold a majority on the NLRB and are expected to do so until August of this year, when a Republican member's term expires. When that vacancy (and the current vacancy) are filled with Democratic members, we can expect the agency to revisit decisions and regulations adopted in the prior administration, potentially reversing case law more favorable to employers and adopting more labor-friendly policies.

Equally if perhaps not more important, less than half an hour after his inauguration, President Biden demanded the resignation of the NLRB's general counsel (a Republican political appointee). When the general counsel declined to resign, he was fired that same day (marking the first time a sitting general counsel was removed prior to the end of their term), and shortly thereafter replaced with a career NLRB attorney in an acting capacity. The president has nominated a Democratic successor, whose nomination is expected to be considered by the U.S. Senate shortly. Insofar as the general counsel has significant authority over the prosecution of cases before the NLRB and in federal courts, and enjoys broad latitude in interpreting federal labor relations law, it is likely that we will soon see policy shifts far more friendly to organized labor.

Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission (EEOC) finds itself in a position similar to the NLRB's. The five-member EEOC is presently comprised of two Democratic commissioners and three Republicans. The president designated Democratic commissioner Charlotte Burrows to chair the agency (and designated the other Democratic member as vice-chair), but the ability of the EEOC to advance Democratic policy priorities is hampered by its Republican majority.

Conclusion

President Biden and his Cabinet hit the ground running on day one of his administration, and show no signs of slackening their pace. Indeed, insofar as Democratic control of Congress hinges on razor-thin majorities in both houses, the administration continues to press for quick action on legislative priorities. This is in no small part due to the fact that mid-term elections are 18 months away, and a shift of power in even a single seat in the Senate (and a small number of seats in the House) would return the chamber to Republican control. In light of these facts, it is clear that the administration will continue to move aggressively to adopt labor and employment policies in line with the president's priorities, and will use every tool available to it to accomplish these goals.

Posted In: Congressional Activity; Coronavirus Disease 2019 (COVID-19); Department of Labor (DOL); Discrimination, Illegal; Equal Employment Opportunity Commission (EEOC); Executive Branch; National Labor Relations Act (NLRA); National Labor Relations Board (NLRB); Title VII of the Civil Rights Act of 1964 (Title VII)

Want to know more? Read the full article by at Littler Mendelson

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