President Biden’s Impact on Employers in His First Three Weeks

There has been a flurry of administrative activity impacting employers in the first three weeks of the Biden administration. These activities have largely been new appointments and the unwinding of sub-regulatory administrative actions put in place by the Trump administration. Because these types of actions can be put into place with the stroke of a pen, they can likewise be eliminated with the stroke of a pen.

Here is a summary of what has occurred since President Biden took office:

National Labor Relations Board

In the few weeks since President Biden has taken office, we have seen a change at the National Labor Relations Board (NLRB), which has led to some further developments. First, in an unprecedented move, President Biden removed the Board’s General Counsel Peter Robb and his Assistant General Counsel Alice Stock. Following Robb’s departure, Peter Sung Ohr was named acting General Counsel. While the General Counsel is not able to change the Board’s precedent, the individual in the position sets the Board’s agenda on policy. Since Ohr has taken over, he has acted consistent with that role by engaging in a number of actions. In particular, Ohr has rescinded a number of memos issued by Robb which instructed investigators and lawyers on enforcement priorities, thereby reshaping the Board's position on critical labor law initiatives. In rolling back these memos, Ohr indicated that they either were inconsistent with the Board’s goal of encouraging collective bargaining and protecting workers rights or they are no longer necessary.

The memos rescinded by Ohr addressed topics such as: (1) employer policies that could affect employee rights under the National Labor Relations Act; (2) neutrality agreements in which employers allow organizing activities or negotiate terms before a union is recognized as the representative of employees; and (3) encouraging the Board to place more stringent burdens on unions, including memos and guidance regarding the duty of fair representation which would have made it easier for employees to allege such claims. These changes make clear that the Board will be union/employee friendly for the next four years - which is not unexpected given statements made by President Biden on the campaign trail.

While the Board’s composition has not yet changed with there being two Democratic seats (one still unfilled) and three Republican seats, President Biden has named the sole Democratic member, Lauren McFerran, as the NLRB chair. It is expected that President Biden will promptly fill the one Democratic seat that is open. However, he will not be able to change the Republican majority on the Board until the expiration of William Emanuel’s term in August 2021.

Aside from the changes at the Board, President Biden has emphasized his support for organized labor, which he made clear during his campaign, by pushing for the passage of the Protecting the Right to Organize (PRO) Act. On February 4, 2021, House and Senate leaders formally introduced the Act, followed by a tweet from President Biden. The PRO Act would provide numerous additional protections to employees and unions that are not currently provided under federal law. These protections would, among other things, make it easier for unions to organize and obtain a first contract from an employer, limit arbitrations, impose stricter requirements for independent contractor classifications, repeal state right to work laws which make it illegal for an employee to be required to join a union and provide for fines for violations of the National Labor Relations Act. While no hearing dates have been set for the legislation, it is all but guaranteed that the PRO Act will face vigorous lobbying and opposition from corporate America and ultimately very likely a Senate filibuster.

Occupational Safety and Health Administration

The Department of Labor’s (DOL) Occupational Safety and Health Agency (OSHA) issued what it described as “stronger worker safety guidance” to help employers combat the spread of the coronavirus in the workplace. The guidance can be found here.

The agency used the guidance to advocate for businesses to establish infection prevention programs, however, the advice is not legally binding. Its release comes after President Biden ordered OSHA to determine whether there is a need for an emergency temporary standard to protect workers from on-the-job COVID-19 infection, and if so, to issue such a standard on or before March 15, 2021. Notably, OSHA has the ability to promulgate an emergency temporary standard that would remain in effect for up to six months without going through the normal review and comment process of rulemaking. OSHA, however, has rarely used this authority in the past—not since the courts struck down its emergency temporary standard on asbestos in 1983.

DOL Wage and Hour Division

The Biden DOL quickly withdrew three opinion letters that had been issued by the DOL relating to the Fair Labor Standards Act (FLSA). An opinion letter is an official, written opinion by the Department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter. The three opinion letters withdrawn are:

• FLSA2021-4: Addressing whether a restaurant may institute a tip pool under the FLSA that includes both servers, for whom the employer takes a tip credit, as well as hosts and hostesses, for whom a tip credit is not taken.
• FLSA2021-8: Addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA.
• FLSA2021-9: Addressing whether requiring tractor-trailer truck drivers to implement safety measures required by law constitutes control by the motor carrier for purposes of their status as employees or independent contractors under the FLSA, and whether certain owner-operators are properly classified as independent contractors.

We may soon see other actions by the Biden DOL impacting Trump regulations relating to joint employment and independent contractor status.

Separately, DOL ended the Payroll Audit Independent Determination (PAID) program, effective immediately. PAID, launched by the WHD in 2018, allowed employers to self-report minimum wage and overtime violations under the FLSA without facing litigation, penalties or additional damages. The program also prohibited affected workers from taking any private action on the identified violations.

Discrimination

President Biden issued an Executive Order directing all federal agencies to take steps preventing and combating discrimination based on gender identify or sexual orientation, and reversing the transgender military ban.

The DOL also closed tip lines that the Trump administration had set up to allow employees of federal contractors to report diversity trainings that focused on “white privilege” and “anti-American” race and sex “stereotyping.” In September 2020, former President Trump tasked the Labor Department’s Office of Federal Contract Compliance Programs with implementing Executive Order 13,950, by establishing the means for workers to disclose instances of trainings that Trump’s order had outlawed within federal agencies and companies doing business with the federal government. President Biden revoked Executive Order 13,950 on his first day in office.

Minimum Wage

President Biden’s quest to increase the minimum wage to $15 may have encountered a roadblock in a new report from the non-partisan Congressional Budget Office (CBO). The CBO reported that the move would boost jobless rolls by 1.4 million by 2025, even as 900,000 people get lifted out of poverty. The scorekeeper also estimated in its report that the proposal would increase budget deficits by $54 billion over 10 years. These projections will feed Republican arguments that the measure is a job killer.

Immigration

Current Travel Restrictions to the United States

• The Biden administration repealed travel restrictions against individuals from certain Muslim-majority countries.
• However, restrictions relating to the COVID-19 pandemic continue to affect travel to the United States. All airline passengers arriving from abroad, including U.S. citizens and green card holders, must show a negative COVID-19 test that was taken less than three days before departure. Additionally, certain noncitizens will face suspended or limited entry, with exceptions, into the U.S. if they were physically present in the Schengen Area (most of Europe), the U.K., Ireland, Brazil, and South Africa during the 14-day period preceding their entry or attempted entry. Previous restrictions for certain travelers from Iran and China remain in effect. Certain affected noncitizen travelers from these areas may seek a National Interest Exception, but a negative COVID test does not exempt a noncitizen traveler from the ban for these areas.
• The Biden administration has so far not rescinded the prior administration's H/J/L Nonimmigrant Proclamation, which remains in effect until March 31, 2021. Unless they meet one of several exceptions, noncitizens applying for initial visas in certain H-1B, H-2B, L-1A, L-1B, and J-1 categories, as well as the related dependent categories, may not enter the United States prior to at least March 31, 2021.

Restoring Faith in America's Immigration System

• For the past four years, applications for employer-sponsored visas and residency applications have faced administrative obstacles and requests for extensive additional documentation. The Biden administration, however, has indicated a willingness to make it more streamlined and predictable for U.S. companies to hire talented, qualified, noncitizen employees for timely, essential positions. A recent executive order directs agencies to not only identify and reduce barriers that impede access to immigration benefits, but also ensure fair, efficient adjudications of petitions.

Normal H-1B Lottery Rules Apply This Year

• For 2021, USCIS will implement the H-1B registration lottery based on the existing random selection system. The Department of Labor has delayed the implementation of a final rule that would have created a wage-based selection process for H-1B visas. Accordingly, the wage-based selection process will not affect the 2021 H-1B visa lottery. Registration for the H-1B lottery will run from March 9 to March 25, and USCIS will announce results by March 31. Petitions for selected beneficiaries may be filed between April 1 and June 30, 2021.

Restored H-1B Availability for Certain Computer Programmers

• For many years, it has been difficult to convince USCIS that "computer programmer" is a specialty occupation for H-1B eligibility. In light of a recent Ninth Circuit decision, USCIS has rescinded a 2017 memo that made it more difficult for computer programmers to qualify for H-1B visas. Employers may now once again use the "computer programmer" category for H-1B eligibility where appropriate.

We will continue to track these and other developments from the Biden administration.

For more information regarding recent OSHA guidance or employer obligations resulting from recent Biden administration changes, please contact your Quarles & Brady attorney or:

• Judith Williams-Killackey : (414) 277-5439 / judi.williams@quarles.com
• Chris Nickels : (414) 277-5519 / chris.nickels@quarles.com
• Grant Sovern : (608) 283-2668 / grant.sovern@quarles.com
• Angela O'Brien : (608) 283-2645 / angela.obrien@quarles.com