The Biden Administration Early Actions on Labor & Employment and How They Can Affect Employers

2020 US Election – The Biden Administration Early Actions on Labor & Employment and How They Can Affect Employers

February 9, 2021

Seyfarth Shaw LLP

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

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 [email protected] [email protected] [email protected] [email protected] [email protected]

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

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

Nomination announced January 7th • 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- Marty Walsh area unions Mayor of Boston

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

• 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

• 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

• 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

• 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

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

• 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

• 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

• 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. 21 Legislative Priorities • Multiemployer Pension Fund Reform Federal Labor • PRO Act 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. 22 New 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: Trump-Era • GC 18-04: Handbook rules post Boeing • 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. 24 NLRB: 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

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

• 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.”

• 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.

• 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

32 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

• 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