On Labor Day 2020, then-candidate Joe Biden promised The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) that he would be the “strongest labor president you’ve ever had.” Not yet halfway through his first year as president, Biden appears to be making good on his promise.
Executive Actions
On day one of the new administration, the president took the unprecedented action of firing the independent general counsel of the National Labor Relations Board (NLRB), whose statutory term was not supposed to expire until November 2021. No previous president had ever fired the NLRB general counsel before the end of his statutory term, but General Counsel Peter Robb was strongly disliked by labor unions. The president appointed Peter Sung Ohr as acting general counsel, a staunch union supporter who immediately began reversing prosecutorial and advice decisions of his predecessor.
Next, the president nominated Boston Mayor Marty Walsh, a career business agent and high official in the union building trades, as his secretary of labor. Another former union official has been tabbed by the president as the new Occupational Safety and Health Administration undersecretary. A long-time union attorney was appointed to head the Department of Labor’s Office of Labor Management Standards (OLMS), charged with monitoring union compliance with legal obligations to members. Other recent DOL appointments include progressive officials with long records, favoring increased burdens on employers to provide new employee benefits.
The president fulfilled another campaign promise by issuing an executive order creating a “Task Force on Worker Organizing and Empowerment.” As the name implies, this task force is filled with labor advocates whose stated goal is to support “work power, worker organizing and collective bargaining.”
The president also issued an executive order requiring government contractors to pay a minimum wage of per hour, although Congress refused to pass legislation more broadly mandating the increased minimum wage on private work. And the president by executive order rescinded the prior administration’s order prohibiting “racial scapegoating” in diversity training by government contractors.
In addition, Biden ordered OSHA to consider issuing an Emergency Temporary Standard (ETS) imposing new COVID-19 safety mandates on employers, long demanded by labor unions, even as the administration announced the lifting of many pandemic restrictions due to the dramatic reduction in COVID-19-related illness and widespread vaccinations. The ETS was delayed amidst concerns about its legal justification in the absence of a continuing emergency.
Reversal of ‘Business-Friendly’ Regulations
The president’s appointees moved quickly to undo regulations of the previous administration that sought to provide clearer guidance to employers, but which the new administration deemed to be insufficiently protective of employee rights. Under Biden, the DOL delayed the effective date of the independent contractor rule under the Fair Labor Standards Act (FLSA), then withdrew the rule altogether, though both actions have been challenged in a federal court suit filed by Associated Builders and Contractors and other organizations. The DOL also proposed to rescind the prior administration’s “joint employer” rule under the FLSA, though that matter is also being litigated in court.
It remains to be seen whether the administration will attempt to reinstate the so-called “persuader advice” rule or the “blacklisting” rule, both of which were promulgated during the Obama administration, only to be blocked by business groups in the courts, resulting in nationwide injunctions against the rules. Any attempt to reinstate those rules is certain to be again contested by business organizations, including ABC.
Endorsement of the PRO Act and Government-Mandated PLAs
The Protect the Right to Organize (PRO) Act is the most radical proposed rewrite of federal labor law in more than 70 years, including more than 50 major changes designed in every instance to give greater power to unions at the expense of employers. Biden endorsed the PRO Act during his campaign and subsequently included its provisions in the massive 2021 infrastructure bill, along with numerous provisions imposing union requirements known as project labor agreements (PLAs). The infrastructure bill would also expand the “prevailing wage” provisions of the Davis-Bacon Act, at considerable cost to taxpayers.
The PRO Act would effectively overturn “right-to-work” laws that exist in half the United States. The act would also codify a three-part test that would shrink the number of independent contractors and would greatly expand the concept of joint employment. Plus, it would also greatly restrict the ability of employers to contest union elections or obtain labor relations advice. Perhaps of greatest concern to the construction industry, the PRO Act would remove longstanding protections against “secondary boycotts,” allowing unions to coerce neutral customers and jeopardize supply chains essential to construction.
Another important change under the PRO Act would be elimination of class action waivers in arbitration agreements with non-union employees. Many employers currently rely on such agreements to avoid the major expense of class action litigation. Similar language is being supported by the Biden administration in the Forced Arbitration Injustice Repeal (FAIR) Act, also pending in Congress.
These are only a few of the onerous provisions of the PRO Act, which has passed the House and awaits an uncertain vote in the Senate. But the president has made clear that he would sign the bill if it reaches his desk. ABC and the entire business community has strongly opposed the bill.
Changes Coming to the NLRB and EEOC
Aside from replacing the general counsel as discussed above, Biden has not yet been able to appoint new members to the NLRB. But that is expected to change upon the expiration of Republican member William Emanuel’s term in late August 2021. Sometime this fall, the president will be entitled to gain control of the NLRB with anticipated pro-labor appointments. Once that happens, even without passage of the PRO Act, the current board is expected to undo a number of the Trump board’s policies, expanding union access and organizing rights, as well as expanding the protected rights of non-union employees to engage in group activities, while severely limiting the rights of employers to protect their businesses from unwarranted labor attacks.
All of these changes are expected to lead to increases in the number of union organizing petitions and unfair labor practice charges in many industries, including construction.
The Equal Employment Opportunity Commission is also expected to remain in Republican control for at least a year, barring any unexpected vacancies. Eventually, however, the EEOC is expected to reinstate a number of controversial Obama-era rules including the expanded EEO-1 requirement to collect employee compensation data classified by race, ethnicity, and gender, as well as efforts to regulate “algorithmic discrimination.”
Continuing COVID-19-Related Concerns
In addition to the labor changes discussed above, the Biden Administration has remained active in COVID-19-related matters. The expanded unemployment benefits in the COVID-19 relief package remain controversial, hindering the ability of many construction employers to return to full employment. The administration is also pushing for more paid leave requirements, which again will tax the ability of employers to perform projects as they become available.
The recent abrupt changes in the Centers for Disease Control and OSHA guidance on masks and other safety aspects of COVID-19 have also created concerns, and inconsistent state and federal rulings on vaccination issues have created challenges for employers as well.
Considering how much change has already taken place in the early months of the Biden Administration, the prospects for the coming months and years are daunting for construction industry employers dealing with so many labor law developments. Increased management training and vigilance in monitoring the fast-moving changes in the laws, as well as advocacy push back against the more extreme policy proposals, are called for in order to avoid running afoul of the new federal labor enforcement initiatives.
