2020 us election the biden administration

“Seyfarth” refers to Seyfarth Shaw LLP (an Il l inois l imited l iability partnership).

Seyfarth Shaw LLP

2020 US Election –The Biden Administration

Early Actions on Labor &

Employment and How They Can

Affect Employers

February 9, 2021

©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

“Seyfarth” refers to Seyfarth Shaw LLP (an Il l inois l imited l iability partnership).

Seyfarth Shaw LLP

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.

©2020 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Joining You Today

©2021 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 3

Larry LorberCounsel

Washington D.C. [email protected]

Leon RodriguezPartner

Washington, [email protected]

Scott HeckerSenior CounselWashington D.C.

[email protected]

Robert FisherPartnerBoston

[email protected]

Scott MalleryCounsel

[email protected]

Agenda

01 New Agency Appointments

02 Diversity and Equity Actions

03 OFCCP

04 NLRB

05 Increasing the Minimum Wage

06Preparing for an OSHA COVID-19 Emergency

Temporary Standard


2021 Seyfarth Shaw LLP. All rights reserved. 5

Personnel is Policy

• Transition Teams

• Recent Appointments

• Anticipated Appointments

Department of Labor Transition Team

One of 39 Agency Review Teams, a 23 Member team of

volunteers, full-time transition employees, and detaileesappointed to evaluate operations of the DOL, including:

• Chris Lu, Team Lead

– Former Deputy Labor Secretary– President Obama’s Cabinet Secretary

• Jenn Abruzza– Former General Counsel to the NLRB

– Current Special Counsel for Strategic Initiatives with the Communications Workers of America (CWA)

• Seth Harris– Former Deputy Labor Secretary

• Patricia Smith– Senior Counsel for National Employment Law Project

(NELP) – President Obama’s Solicitor of Labor

• Jenny Yang– Former Chair of the EEOC

• Mary Beech, Northeastern University

• Jessica Chu, Amalgamated Transit Union Int’l• Michele Evermore, National Employment Law Project

• Jocelyn Frye, Center for American Progress• Tanya Goldman, Center for Law and Social Policy

• Viv Graubard, New America• Deborah Greenfield, Self-Employed

• Michael Hazard, United Association• Nadia Marin-Molina, National Day Laborer Organizing Network

(NDLON)• Patricia Moscoso, State of California

• Seema Nanda, Self-Employed• Raj Nayak, Self-Employed

• Shaun O’Brien, American Federation of State, County, and Municipal Employees

• Josh Orton, United States Senate, Office of Senator Bernie Sanders

• Doug Parker, State of California, Department of Industrial Relations

• Lynn Rhinehart, Self-Employed• Ann Rosenthal, Self-Employed

• Robin Runge, The Solidarity Center


Secretary of Labor

• Nomination announced January 7th

• 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-area unions

Nomination announced January 7th


Marty Walsh

Mayor of Boston

Deputy Secretary of Labor

• Co-Founder of Sweatshop Watch

• Litigation director at the Asian Pacific American

Legal Center Southern California (APALC)

• Criticized re: oversight of California

Unemployment Program

Announcement soon


Julie Su

Secretary -California Labor &

Workforce Development

Agency

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

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

Director 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 Urban Institute


Jenny R. Yang

Urban Institute

Acting 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

Diversity & Equity Actions

From Trump to Biden


• 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,

2020

• 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

Trump Administration


Biden Administration


• Biden - Executive Order 13985 - January 20,

2021- Advancing Racial Equity

• Rescind Trump Order 13950- Requires

Federal Agencies to promote Diversity in

training and policy

• 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

The 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


OFCCP



• New Director Jenny Yang

• DOL will be “Engine of Change” for Biden Administration’s 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

OFCCP


National Labor

Relations Board

Acting 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


- Presidential Candidate Joe Biden (speaking at AFL-CIO Labor Day event)

[I’m going to be the] strongest labor President you have ever had.

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/)


Legislative Priorities• Multiemployer Pension Fund Reform

• PRO Act

Executive Orders• PRO Act for Federal Contractors

Possible Rulemaking• NLRB: Joint Employer

• NLRB: Quickie Elections

• DOL: Persuader Activity

• Exec Order (Gov’t Contractors): You Name It

Reversal of NLRB Case Law

Federal Labor RelationsLaws: Possible Changes


New General Counsel

• January 20, 2021 – Peter Robb refuses to

resign and is terminated

• January 22, 2021 – Deputy GC Alice Stock is

named Acting GC, terminated that afternoon

• No reasons for firings given, without precedent

• 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

National Labor Relations Board:Shifting the Balance of Power


• On February 1 and 2, Acting GC Ohr rescinded ten

GC and two operations-management memos

issued by Robb.

• Noteworthy rescissions:• GC 18-04: Handbook rules post Boeing

• GC 20-13: Employer assistance in union

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

NLRB Acting GC Rolls Back Trump-Era Guidance

NLRB: Reversal of Key Decisions by Trump Board

Non-Union Employee Groups*

• Strict scrutiny of workplace policies

• Right to use email for union activity

• Leeway for offensive statements

• Return to micro-units in organizing

* would apply to unionized employees, too

Unionized Workforces

• Requirement to bargain over discipline

and discharge immediately after union

election

• Increased hostility to defense that union

has no right to bargain over changes

• No inherent ability to stop dues check-

off upon contract expiration


Federal Workers and

Federal Contractors

for $15


vs.

Executive and Legislative Paths to the $15 Minimum Wage

Executive Orders

– EO 14003 requires the Director of OPM to provide a report with recommendations to promote a $15/hour minimum wage for Federal employees.

– As part of his efforts to protect and empower federal workers and contractors, President Biden directed his Administration “to start the work that would allow him to issue an Executive Order within the first 100 days that requires federal contractors to pay a $15 minimum wage and provide emergency paid leave to workers.”

– President Obama’s EO 13658 established a minimum wage for federal contractors, applicable to contracts entered into after January 1, 2015.

Congressional Action

– $1.9 Trillion COVID-19 package would nearly double the minimum wage to $15 Hr.

– Last Monday, Democrats filed a joint budget resolution beginning process for passing the package through reconciliation, or without Republican support.

– An increase that drastic almost assuredly cuts off republican support for the package, and even moderate democrats, like Joe Manchin, make passage even along party lines exceedingly difficult.

– House Budget Committee Chairman John Yarmuth and Senate Budget Conference Chair Bernie Sanders are 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


https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/22/fact-sheet-president-bidens-new-executive-actions-deliver-economic-relief-for-american-families-and-businesses-amid-the-covid-19-crises/

https://edlabor.house.gov/imo/media/doc/Raise%20the%20Wage%20Bill%20Text1.pdf

Whither the OSHA

ETS?


Status: 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.”


https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-worker-health-and-safety/

https://www.osha.gov/coronavirus/safework

Status: 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.



Immigration

Biden Administration Priorities Now Clear

32

• America’s Citizenship Act of 2021

• Refugee and Asylum Reform

• Border Security/Central America Migration

• Workplace Immigration

– Less raids, continued employer level enforcement

– Mixed messages on workplace immigration

Immigration

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. 33

America’s Citizenship Act of 2021

©2021 Seyfarth Shaw LLP. All rights reserved. 34

Key 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

times of high unemployment

• 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


Thank You!

2020 us election the biden administration

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