2020 US Election - The Biden Administration - Seyfarth Shaw
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2020 US Election – The Biden Administration Early Actions on Labor & Employment and How They Can Affect Employers February 9, 2021 Seyfarth Shaw LLP “Seyfarth” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). ©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Legal Disclaimer This presentation has been prepared by Seyfarth Shaw LLP for informational purposes only. The material discussed during this webinar should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The content is intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. Seyfarth Shaw LLP “Seyfarth” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). ©2020 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Joining You Today
Leon Rodriguez Robert Fisher Scott Hecker Larry Lorber Scott Mallery
Partner Partner Senior Counsel Counsel Counsel
Washington, D.C. Boston Washington D.C. Washington D.C. Sacramento
lerodriguez@seyfarth.com rfisher@seyfarth.com shecker@seyfarth.com llorber@seyfarth.com smallery@seyfarth.com
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 3
Agenda
01 New Agency Appointments
02 Diversity and Equity Actions
03 OFCCP
04 NLRB
05 Increasing the Minimum Wage
Preparing for an OSHA COVID-19 Emergency
06 Temporary Standard
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 4
Personnel is Policy
• Transition Teams
• Recent Appointments
• Anticipated Appointments
2021 Seyfarth Shaw LLP. All rights reserved. 5
Department of Labor Transition Team
One of 39 Agency Review Teams, a 23 Member team of • Mary Beech, Northeastern University
volunteers, full-time transition employees, and detailees • Jessica Chu, Amalgamated Transit Union Int’l
appointed to evaluate operations of the DOL, including: • Michele Evermore, National Employment Law Project
• Jocelyn Frye, Center for American Progress
• Chris Lu, Team Lead • Tanya Goldman, Center for Law and Social Policy
– Former Deputy Labor Secretary • Viv Graubard, New America
– President Obama’s Cabinet Secretary • Deborah Greenfield, Self-Employed
• Jenn Abruzza • Michael Hazard, United Association
– Former General Counsel to the NLRB • Nadia Marin-Molina, National Day Laborer Organizing Network
– Current Special Counsel for Strategic Initiatives with the (NDLON)
Communications Workers of America (CWA) • Patricia Moscoso, State of California
• Seth Harris • Seema Nanda, Self-Employed
– Former Deputy Labor Secretary • Raj Nayak, Self-Employed
• Patricia Smith • Shaun O’Brien, American Federation of State, County, and
– Senior Counsel for National Employment Law Project Municipal Employees
(NELP) • Josh Orton, United States Senate, Office of Senator Bernie
– President Obama’s Solicitor of Labor Sanders
• Jenny Yang • Doug Parker, State of California, Department of Industrial
– Former Chair of the EEOC Relations
• Lynn Rhinehart, Self-Employed
• Ann Rosenthal, Self-Employed
• Robin Runge, The Solidarity Center
2021 Seyfarth Shaw LLP. All rights reserved. 6
Secretary of Labor
Nomination announced January 7th
• Nomination announced January 7 th
• Organized labor veteran
• Head of Boston Building and Construction Trades
Council before entering public office
• Elected Mayor of Boston in 2013
• Was member of Laborers' International Union of North
America member
• Headed Building Trades Council, a coalition of Boston-
Marty Walsh area unions
Mayor of Boston
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 7
Deputy Secretary of Labor
Announcement soon
• Co-Founder of Sweatshop Watch
• Litigation director at the Asian Pacific American
Legal Center Southern California (APALC)
• Criticized re: oversight of California
Unemployment Program
Julie Su
Secretary -California Labor &
Workforce Development
Agency
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 8
Senior Counsel for Secretary of Labor
• Served in Obama administration as DOL Solicitor
of Labor
• Former New York State Commissioner of Labor
• Former Senior Counsel with National Employment
Law Project (NELP)
Patricia Smith
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 9
Head of OSHA
• Nominated as Deputy Assistant Secretary of Labor
for OSHA
• Spent 25 years as a top investigator at the United
Steelworkers union’s health, safety, and
environment department
• Consultant for ORC HSE Strategies safety
compliance consultant firm
James F. Fredericks
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 10Director of OFCCP
• Former Chair of EEOC under Obama
Administration
• Expected focus on pay equity & sexual orientation
and gender identity rights
• Named a 2018 Leadership in Government Fellow
by the Open Society Foundation
• Currently serves as a Senior Fellow at the Center
on Labor, Human Services, and Population at the
Jenny R. Yang Urban Institute
Urban Institute
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 11Acting General Counsel of NLRB
• Career employee of the NLRB
• Began career at NLRB in Honolulu Sub-regional
Office as a Field Attorney
• Appointed Deputy Assistant General Counsel in
2005 in NLRB’s Division of Operations-
Management
• Appointed Regional Director in 2011 of NLRB’s
Chicago Regional Office (Region 13)
Peter Sung Ohr
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 12Diversity & Equity
Actions
From Trump to Biden
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 13• Trump- OMB Memorandum- September 4, 2020
• Federal Training which discusses “white privilege” or
states that there is embedded racism is Un American
- Cannot be part of Training
• Trump- Executive Order 13950- September 25, Trump
2020
Administration
• Government Contractors and Federal Agencies
cannot use race or sex stereotyping as basis for
training or policy
• Justice Department will interpret Title VII in
accordance with this policy
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 14• Biden - Executive Order 13985 - January 20,
2021- Advancing Racial Equity
• Rescind Trump Order 13950- Requires
Federal Agencies to promote Diversity in
Biden training and policy
Administration • Biden - Executive Order 13988- January 20,
2021 - Prohibit Discrimination on basis of Sexual
Identity and Orientation
• Directs all federal agency to examine all
policies, and regulations to prohibit and
discrimination on basis of sex orientation and
Identity
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 15The Yale Lawsuit
• Trump- Sues Yale and Princeton
challenging admissions which might
favor minorities (Yale) and
investigates Princeton diversity in
initiatives
• Biden- Dismisses Yale lawsuit and
drops Princeton investigation
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 16OFCCP ©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 17
• New Director Jenny Yang
• DOL will be “Engine of Change” for Biden Administration’s
OFCCP policies
• Emphasis on:
– AI in Recruiting
– Compensation Data Transparency
– Focus on Systemic Pay Analyses
– Shift in Emphasis and Audit Strategy from Education and Compliance
to Enforcement
• Status of Trump Executive Orders and Related Actions
– EO 13950 Combating Race and Sex Stereotyping – Withdrawn
FAQs – Withdrawn
Hotline Number – Disconnected
Filed Complaints – Dismissed
• Newly Issued Biden Executive Order
– EO 13988 -- Preventing and Combatting Discrimination on the Basis
of Gender Identity or Sexual Orientation
2021 Seyfarth Shaw LLP. All rights reserved. 18National Labor
Relations Board
2021 Seyfarth Shaw LLP. All rights reserved. 19Acting General Counsel of NLRB
• Career employee of the NLRB
• Began career at NLRB in Honolulu Sub-regional
Office as a Field Attorney
• Appointed Deputy Assistant General Counsel in
2005 in NLRB’s Division of Operations-
Management
• Appointed Regional Director in 2011 of NLRB’s
Chicago Regional Office (Region 13)
Peter Sung Ohr
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 20[I’m going to be the] strongest labor President you have ever had.
- Presidential Candidate Joe Biden (speaking at AFL-CIO Labor Day event)
I want you to know I’m a union guy. Unions are going to have
increased power.
- President-Elect Joe Biden (11/16/2020)
[I will c]reate a cabinet-level working group that will solely focus
on promoting union organizing and collective bargaining . . . .
- The Biden Plan For Strengthening Worker Organizing, Collective Bargaining, And Unions
(https://joebiden.com/empowerworkers/)
2021 Seyfarth Shaw LLP. All rights reserved. 21Legislative Priorities
• Multiemployer Pension Fund Reform
• PRO Act
Federal Labor
Relations
Executive Orders
Laws: Possible • PRO Act for Federal Contractors
Changes
Possible Rulemaking
• NLRB: Joint Employer
• NLRB: Quickie Elections
• DOL: Persuader Activity
• Exec Order (Gov’t Contractors): You Name It
Reversal of NLRB Case Law
2021 Seyfarth Shaw LLP. All rights reserved. 22New General Counsel
• January 20, 2021 – Peter Robb refuses to
National Labor resign and is terminated
Relations Board: • January 22, 2021 – Deputy GC Alice Stock is
Shifting the named Acting GC, terminated that afternoon
Balance of • No reasons for firings given, without precedent
Power • January 25, 2021 – Peter Sung Ohr named
Acting General Counsel
NLRB Composition
• Lauren McFerran (D) Named Chair
• Open seat (term expiring August 2023)
• Member Emanuel’s (R) term expiring August
2021
2021 Seyfarth Shaw LLP. All rights reserved. 23• On February 1 and 2, Acting GC Ohr rescinded ten
GC and two operations-management memos
NLRB Acting GC issued by Robb.
Rolls Back • Noteworthy rescissions:
• GC 18-04: Handbook rules post Boeing
Trump-Era
• GC 20-13: Employer assistance in union
Guidance organizing
• GC 20-08: Changes to investigation practices
• GC 19-01: DFR claims against unions
• GC 19-04: Union obligations regarding dues check
off and others
• Ohr claims the rollback was necessary because Robb’s guidance was
inconsistent with the Board’s goal of encouraging collective bargaining
and protecting workers’ rights under the Act
2021 Seyfarth Shaw LLP. All rights reserved. 24NLRB: Reversal of Key Decisions by Trump Board
Non-Union Employee Groups* Unionized Workforces
• Strict scrutiny of workplace policies • Requirement to bargain over discipline
• Right to use email for union activity and discharge immediately after union
election
• Leeway for offensive statements
• Increased hostility to defense that union
• Return to micro-units in organizing
has no right to bargain over changes
• No inherent ability to stop dues check-
off upon contract expiration
* would apply to unionized employees, too
2021 Seyfarth Shaw LLP. All rights reserved. 25Federal Workers and
Federal Contractors
for $15
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 26Executive and Legislative Paths to the $15 Minimum Wage
Executive Orders vs. Congressional Action
– EO 14003 requires the Director of OPM to provide a report – $1.9 Trillion COVID-19 package would nearly double the
with recommendations to promote a $15/hour minimum minimum wage to $15 Hr.
wage for Federal employees. – Last Monday, Democrats filed a joint budget resolution
– As part of his efforts to protect and empower federal beginning process for passing the package through
workers and contractors, President Biden directed his reconciliation, or without Republican support.
Administration “to start the work that would allow him to – An increase that drastic almost assuredly cuts off
issue an Executive Order within the first 100 days that republican support for the package, and even moderate
requires federal contractors to pay a $15 minimum wage democrats, like Joe Manchin, make passage even along
and provide emergency paid leave to workers.” party lines exceedingly difficult.
– President Obama’s EO 13658 established a minimum – House Budget Committee Chairman John Yarmuth and
wage for federal contractors, applicable to contracts Senate Budget Conference Chair Bernie Sanders are
entered into after January 1, 2015. confident this can be passed through reconciliation
– Apart from the stimulus package, House and Senate
Democrats also introduced stand-alone legislation to
increase the federal minimum wage to $15 by 2025.
– The number might change, but employers should expect
some kind of increase in the federal min wage
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 27Whither the OSHA
ETS?
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 28Status: OSHA COVID-19 Emergency Temporary Standard
• During his first full day in office, President Biden issued Executive Order
13999, directing OSHA to consider whether an ETS is necessary and, if
so, to issue one by March 15.
– To this point, OSHA has not announced what kind of analysis it is undertaking,
nor commented on whether it has determined if an ETS is necessary.
• Also in EO 13999, President Biden required that OSHA issue revised
COVID-19 workplace safety guidance.
– OSHA obliged on January 29, publishing “Protecting Workers: Guidance on
Mitigating and Preventing the Spread of COVID-19 in the Workplace.”
– In a press release announcing issuance of the guidance, OSHA stated its
purpose of putting forth “stronger worker safety guidance to help employers
and workers implement a coronavirus protection program and better identify
risks which could lead to exposure and contraction.”
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 29Status: OSHA COVID-19 Emergency Temporary Standard (Cont’d)
• The guidance describes sixteen items that the most effective COVID-19
prevention programs include, and provides further explanation of key
measures, such as:
– separating and sending home infected or potentially-infected people;
– implementing physical distancing or installing barriers;
– using face coverings and necessary PPE;
– improving ventilation;
– providing supplies for good hygiene practices; and
– performing routine cleaning and disinfection.
• Now is the time to review and revise your COVID-19 plans and to
implement appropriate mitigation protocols to get ahead of any OSHA ETS
that may issue by March 15.
©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 30Immigration 2021 Seyfarth Shaw LLP. All rights reserved. 31
• America’s Citizenship Act of 2021
• Refugee and Asylum Reform
Biden • Border Security/Central America Migration
Administration
Priorities Now • Workplace Immigration
Clear – Less raids, continued employer level enforcement
– Mixed messages on workplace immigration
32Immigration
What will happen to?
• Travel Restrictions
• Recently Proposed Regulations
– Establishing a Fixed Time Period of Admission and an
Extension of Stay Procedure for Nonimmigrant Academic
Students, Exchange Visitors, and Representatives of
Foreign Information Media
– Strengthening the H-1B Classification
– Modification of Registration Requirement for Petitioners
Seeking To File Cap- Subject H-1B Petitions
– Strengthening Wage Protections for the Temporary and
Permanent Employment of Certain Aliens in the United
States
• Other Guidance and Adjudication Practices
©2021 Seyfarth Shaw LLP. All rights reserved. 33Key Sections:
• Path to citizenship for DACA recipients, agricultural
workers and other undocumented populations
• Authorizes DHS to temporarily reduce admission of
sponsored immigrants in particular areas during
America’s times of high unemployment
Citizenship Act
of 2021 • Authorizes prioritizing of employment–based VISA
issuance on the wages offered by the employer to
the employee.
• Authorizes allocation of H-1B VISAs to economically
disadvantaged areas
©2021 Seyfarth Shaw LLP. All rights reserved. 34Thank You! ©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 35
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