Since the presidential inauguration, many employers have been wondering what changes President Joe Biden’s administration will make in the world of labor and employment law. This blog post summarizes a few key changes the Biden administration has already made, as well as a few changes the administration will likely make in the coming months.
Biden appoints new general counsel to the National Labor Relations Board
Last month, President Biden terminated the appointment of Peter Robb, the General Counsel of the NLRB. President Biden named Peter Sung Ohr to replace Robb as acting general counsel. Although he has not served as general counsel for long, Ohr has already revoked a number of guidance memorandums issued by Robb, including a memorandum that required any union raising a “mere negligence” defense to a duty of fair representation allegation to show the existence of “established, reasonable procedures in place to track grievances.” In other words, Ohr rescinded guidance that had previously made it harder for a union to defend against allegations that it violated its duty of fair representation.
Ohr will remain the acting general counsel until President Biden nominates a candidate for the general counsel position in the coming weeks. It is likely that this nominee will investigate and prosecute unfair labor practice cases with a more union-friendly disposition than Robb.
Biden revokes Trump-era executive order
President Biden has already revoked a litany of executive orders issued by his predecessor, including an executive order pertaining to workplace training. Specifically, President Biden revoked Executive Order 13950, entitled “Combatting Race and Sex Stereotyping.” This executive order prohibited federal contractors from holding any workplace training “that promotes race or sex stereotyping or scapegoating.” President Biden revoked the executive order on his first day in office.
Biden supports the Protecting the Right to Organize Act (PRO Act)
President Biden has announced his support for the PRO Act, a piece of legislation that would significantly impact labor law and create a host of worker protections. Although the following list is non-exhaustive, the bill would have the following impacts if signed into law:
- Permit the NLRB to bring civil penalties against companies that fail to comply with NLRB orders, including a fine of up to $10,000
- Create a private right of action for employees to bring claims against employers that interfere with employees’ rights to organize or join a union
- Codify the Browning-Ferris Industries decision by the Obama-era NLRB, thereby broadening the standard for determining joint-employer status
- Prohibit employers from requiring employees to sign individual arbitration agreements
- Allow collective bargaining agreements to require all bargaining unit employees to contribute fees to the union, notwithstanding a state law to the contrary
- Allows employers to permanently replace employees who participate in a strike
The PRO Act was reintroduced in the U.S. House last month and was referred to the Committee on Education and Labor.
Biden signals aggressive stance on worker classification
President Biden has called worker misclassification an “epidemic” and has sought to give employers less discretion when classifying workers as independent contractors. To that end, he has promised to work with Congress to establish a federal standard for worker classification modeled on the “ABC Test.” The ABC Test states that a worker is considered an employee unless the hiring entity can show all three of the following factors:
- The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
- The worker performs work that is outside the usual course of the hiring entity’s business; and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
NLRB will shift back to democratic majority
Although the National Labor Relations Board (NLRB) will eventually shift back to democratic control under the Biden administration, republicans will retain a majority of the five-member NLRB until Aug. 2021, at which point President Biden can nominate enough democrats to obtain a majority on the board. A democratic majority on the board will likely attempt to overturn a number of President Donald Trump-era decisions, including a landmark decision called The Boeing Company. In The Boeing Company, the NLRB created a test for determining whether a facially-neutral workplace policy potentially interferes with an employee’s rights under the National Labor Relations Act (NLRA). This decision reversed NLRB precedent, which had previously stated an employer would be in violation of the NLRA by implementing a facially-neutral workplace policy that could be “reasonably construed” to chill employees’ NLRA rights. A Biden-era NLRB will likely be much less business-friendly than the Trump-era NLRB, and a reversal of decisions like The Boeing Company will reflect that attitude.
The Biden administration has unsurprisingly taken a more worker-friendly approach to labor and employment issues than the previous administration. We will continue to monitor any actions taken by the Biden administration and keep you apprised. As always, reach out to employment counsel if you are unsure about how the current administration’s decisions may affect your business.