The DC Insider Report – Employers Prepare for Change as the Biden-Harris Administration Begins Rev. March 10, 2021 Fortney & Scott, LLC 1750 K Street, NW, Suite 325 Washington, DC 20006 (202) 689-1200 [email protected] www.fortneyscott.com Table of Contents INTRODUCTION.................................................................................................................................................. 1 OVERVIEW ......................................................................................................................................................... 2 COVID-19 DEVELOPMENTS ................................................................................................................................. 7 FEDERAL AGENCIES ............................................................................................................................................ 9 U.S. DEPARTMENT OF LABOR - KEY AGENCIES .............................................................................................................. 9 OFCCP ................................................................................................................................................................. 10 OSHA (COVID-RELATED) ..................................................................................................................................... 13 W&H DIVISION ................................................................................................................................................... 17 EEOC ............................................................................................................................................................................ 20 NLRB ............................................................................................................................................................................ 23 AREAS OF FOCUS .............................................................................................................................................. 25 D E & I .......................................................................................................................................................................... 26 PAY EQUITY ................................................................................................................................................................. 29 CONCLUSION .................................................................................................................................................... 30 APPENDIX ......................................................................................................................................................... 31 SUMMARY OF EXECUTIVE ORDERS ISSUED BY PRESIDENT BIDEN ............................................................................ A-1 SUMMARY OF MEMORANDA AND PROCLAMATIONS ISSUED BY PRESIDENT BIDEN ................................................ A-6 Rev. March 10, 2021 ©2021 Fortney & Scott, LLC i INTRODUCTION This DC Insider Report (the “Report”) addresses the changes and developments expected during the Biden-Harris Administration. The Report focuses on key Federal agencies and Congressional developments and the policies that impact the workplace and employers. This Report is for informational purposes and does not provide legal advice nor does it state or reflect political opinions or the views of our clients. Rev. March 10, 2021 ©2021 Fortney & Scott, LLC 1 OVERVIEW TRENDS AND EXPECTATIONS With a major legislative victory for its American Rescue Plan, the Biden Administration continues to move smartly to control the pandemic and reverse the prior administration’s actions especially on race, immigration and COVID-19. The Administration has already issued nearly 40 Executive Orders and many other Presidential Actions in its first 50 days, (summarized in the Appendix to this Report), many of which signaled his Administration’s approach to the workplace and the workforce. Rolling Out the New Agenda. In one of his first actions after his Inauguration, the President appointed acting agency leadership to initially lead Federal agencies while Cabinet nominees are moving through the Senate confirmation process. These acting leaders have taken immediate steps to address the Biden-Harris Administration’s four priority issues – the COVID-19 pandemic; the resulting unemployment and slowing economy; ongoing social justice issues; and global climate change while the Administration’s Cabinet is being confirmed by the Senate. COVID-19 Pandemic. The primary focus of the new Administration is addressing and overcoming the COVID-19 pandemic. Since Inauguration Day, President Biden issued Executive Orders and initiated a wide range of actions to accelerate and expand the Federal response to the pandemic, including: Greeted the approval of the additional vaccine developed by Johnson & Johnson by brokering the Merck/J&J joint vaccine production deal and pledged to vaccinate every adult American by the end of May; Ordered stepped-up production of the vaccines, masks, and personal protective gear through the Defense Production Act; Directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard for workplace protections; Ordered the establishment of federally-supported community vaccination centers; Mandated masks and social distancing in Federal buildings and interstate travel; Expanded paid emergency leave and hazard pay for front line workers; Renewed the U.S. membership in the World Health Organization; and, Issued COVID-19-related travel bans and other limitations on travel. American Rescue Plan. The $1.9 trillion bill which passed the House for a second time on March 10 and was signed into law by President Biden provides $1,400 stimulus checks to individuals earning $70,000 or less and to couples earning $150,000 or less; extends federal unemployment benefits of $300 per week and provides benefits to those who can’t work Rev. March 10, 2021 ©2021 Fortney & Scott, LLC 2 because of concern over contracting COVID-19; sends $350 billion in aid to states and local governments as well as provides $125 billion for vaccines, testing and public health. This new legislation, which is widely popular with the general public, marks the first major legislative accomplishment for the new Administration, and fulfills campaign pledges by President Biden. Unemployment and Slowing Economy. The new Executive Orders address workers’ interests and the slowing economy by extending protections relating to evictions and student loan repayments; rescinding prior Executive Orders that restricted Federal employees’ union-related activities; urging an increase of the hourly minimum wage for Federal employees to $15; and proposing that Congress provide additional relief, including supplemental unemployment benefits. Social Justice Issues. The Racial Equity Executive Order rescinded the Executive Order restricting certain diversity training by the Federal government and Federal contractors. The Domestic Policy Council, led by Susan Rice (whose position was elevated to the Cabinet), will oversee a comprehensive review of racial barriers in the Federal government. We anticipate that these initiatives are likely to be extended to require Federal contractors to increase diversity and equity in their businesses. The OMB has subsequently issued a memo to all federal agencies to roll back all actions related to the Trump Administration’s EO barring “divisive” diversity training that involved “scapegoating” based on race and sex. A second Executive Order expanded the LGBTQ protections recognized by the Supreme Court in Bostock in the enforcement of all Federal discrimination statutes. In addition, the House has introduced the Equality Act which would expand protections to LGBTQ individuals and would bar the use of the Religious Freedom Restoration Act (RFRA) to challenge LGTBT protections. President Biden also established a White House Gender Policy Council to coordinate federal government efforts to advance gender equity and equality. The Council will report to the President and will have as its members most of his Cabinet. Immigration. The President proposed an expansive immigration bill including an eight-year path to citizenship for certain undocumented aliens that received a mixed response from Congress along party lines. These actions have been well-received by the business community. Executive Orders reversed the Muslim travel ban, reinstated protections for “dreamers” (under DACA), and ordered the reunification of children and parents separated after crossing the U.S. border. However, Texas has already successfully challenged the Executive Order pausing deportation for 100 days. Key Personnel. The Biden Administration immediately filled key positions that do not require Senate confirmation. Each of the newly-appointed senior personnel has extensive experience and expertise; many previously served in the Obama Administration or other governmental roles, and a substantial number also have strong ties to organized labor. Rev. March 10, 2021 ©2021 Fortney & Scott, LLC 3 Department of Labor (DOL) –Marty Walsh, the Mayor of the City of Boston, is expected to be confirmed in a matter of days as DOL Secretary and California Labor Secretary Julie Su nominated as the Deputy Secretary will have her confirmation hearing shortly. Additional key political positions that are not subject to confirmation already have been