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Scopelitis Labor & Employment News: February 2021

Feb 2, 2021

Off and Running on His First 100 Days, President Biden Addresses A Number of Labor and Employment Issues

With each administration change, the incoming executive targets the first 100 days as a period of high activity in furtherance of the campaign agenda. This is particularly true when both houses of Congress are controlled by the President’s party. President Biden’s start is no different, issuing a flurry of executive orders and other actions from his first moments in office. Many of those actions touch on labor and employment issues affecting employers and their relationship with employees. Just a few of those issues follow.

Opinion Letter on Control and Independent Contractor Classification Withdrawn

In the waning moments of the Trump administration, the U.S. Department of Labor issued an independent contractor classification regulation designed ostensibly to provide more clarity for carriers using owner-operators, largely seen as favoring independent contractor status. The regulation was slated to become effective on March 8, 2021. The DOL followed up with a January 19, 2021 opinion letter applying the new general regulation to a pair of trucking companies, opining that the companies’ owner-operators seemed to be independent contractors. The opinion letter additionally confirmed that the motor carriers could use cameras and sensor-based safety systems in the trucks of owner-operators without such measures being deemed evidence of control over the owner-operators in a way that would suggest employment status.

On January 26, 2021, the DOL withdrew the opinion letter, identifying it as premature given that the independent contractor classification regulation had not yet gone into effect. Even more telling, the President suggested an immediate hold on all regulations that have not yet gone into effect, including the independent contractor classification regulation otherwise set to go into effect on March 8. As the Firm indicated when the final regulation was published, the new administration’s independent contractor stance differs substantially from that seen in the current regulation. Thus, there seems to be little chance the independent contractor regulation becomes effective in its current iteration. Without question, a push will be made for some form of a test more weighted to finding employment status, including in at least some contexts, a push for something more akin to the harsh “ABC” test adopted in California. Such a push will likely not make it all the way to the ABC test for DOL matters, but a substantial swing in that direction is likely.  

Movement Toward a $15 Minimum Wage

A prominent campaign promise called for an increase in the minimum wage for the first time in over a decade. Last Tuesday, Congressional Democrats unveiled a plan to gradually raise the minimum wage each year for the next five years, culminating in a $15 per hour minimum wage. The minimum wage thereafter would be indexed, potentially increasing each year to keep up with wage trends.

President Directs OSHA to Issue Revised Covid-19 Guidance

On January 21, 2021, the President, by executive order, directed OSHA to issue revised guidance to employers on workplace safety relating to the pandemic. OSHA issued guidance to employers early on in the pandemic, designed to help employers assess risk and engage in reopening in a safe manner, but that guidance is now several months old. On January 29, 2021, OSHA issued its revised guidance, focusing on hazard assessments, limiting virus spread through the use of masks and other measures, regular cleaning, and maintaining space. The guidance additionally focuses on employee input and education, including making it clear to employees they will not suffer retaliation for raising Covid-related safety issues. The President has also ordered OSHA to consider whether additional emergency standards mandating mask-wearing are warranted, and, if so, issue new standards by March 15, 2021. OSHA has further been directed to review enforcement efforts and launch a national program focusing on Covid-19 related enforcement priorities. It remains to be seen how far OSHA will go in its pandemic-related safety efforts. At this point, however, OSHA has made it clear that employers must develop a Covid-19 Prevention Program, and OSHA has provided an outline for employers in doing so. 

President Fires NLRB General Counsel

On inauguration day, President Biden requested the resignation of NLRB General Counsel, Peter Robb. The NLRB General Counsel helps set policy and direction for the NLRB, and Biden’s labor agenda conflicts sharply with that of Robb, a Trump appointee. Robb refused to voluntarily leave office, citing statutes that identified his four-year term as expiring in November 2021. Biden, therefore, fired Robb and appointed an acting General Counsel, Peter Sung Ohr, Regional Director over the Chicago Region since 2011. Ohr is presumably set to push a more union-friendly set of directives designed to make it easier for union certification as well as steeper penalties for employer labor law violations. Court action with respect to Robb’s firing, however, is expected. Indeed, employers have already begun asking for stays of prosecution of alleged labor law violations. The NLRB is not expected to halt prosecutions, but the NLRB has been taken to task before for improper appointments, forcing years of cases to be vacated and reconsidered. It may be reasonably unlikely, but if the firing of Robb and the appointment of Acting Director Ohr are eventually deemed improper, history could repeat itself.

Conclusion

The President has a long list of employment-related issues to address in his first 100 days in office. The first few days of the administration, alone, have seen an aggressive push with respect to employment issues, and more are promised. We will keep you abreast as developments occur. If you have any questions in the meantime, please contact the Scopelitis labor and employment team.