Biden Administration Signaling More Employee-Friendly Environment

By: Melanie M. Dunajeski

At the one-month mark for the Biden Administration, many of the business-friendly policies of the Trump Administration are on the chopping block, with a more “employee-friendly” environment signaled.

On Inauguration Day, President Biden signed his “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” indicating the new administration’s commitment to enforcing the recent Supreme Court case Bostock v. Clayton County’s prohibition on discrimination on the basis of gender identity and sexual orientation throughout all federal agencies.  The EO is in line with the promises of greater inclusivity for the LGBTQ community made during the campaign, and likely only a first step in solidifying the reach of the Bostock opinion.

On his first full day in office, President Biden signed his “Executive Order on Protecting Worker Health and Safety” which directed OSHA to issue a revised guidance to employers on COVID-19.  OSHA posted its new guidance on January 29, 2021: “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” Still to come from OSHA in response to the EO are possible emergency temporary standards with respect to mask wearing.

Also, on January 21, the White House issued a memorandum to all federal agencies directing the review and potential delay of any rules that had been issued but that had not yet taken effect.  As a result, the U.S. Department of Labor (DOL) has proposed a delay of two late-Trump administration rules while they are reconsidered. First, the December 2020 “Tip Regulations Final Rule” amendments to the Fair Labor Standards Act addressing tip pools. The proposed rule contained controversial elements, including how recipients of a tip pool were defined and the elimination of the previous 80/20 rule limiting the amount of non-tipped work an employee could be required to do while still allowing the employer to take a tip credit.   The second, the January 2021 “Independent Contractor Final Rule” would have made it easier for a person to be designated as an Independent Contractor (as opposed to an employee).  With this rule being published less than two weeks before the end of the administration and representing a major change in classification methodology, it does not appear likely that it will take effect in its current form.

At the EEOC, two proposed rules under the ADA (Americans with Disabilities Act) and GINA (Genetic Information Nondiscrimination Act) that addressed incentives offered by employers as part of wellness programs have been withdrawn. With new Biden appointees to Chair and Vice-Chair of the Commission, a change in focus is expected..

Still to come, President Biden’s pick for Secretary of Labor, Boston Mayor Marty Walsh has yet to clear Senate Confirmation. Walsh is well known for being a champion of organized labor and will be an ally of the President’s promises to increase minimum wage, extend organized labor, and create well-paid jobs coming out of the pandemic.

Need help navigating the many changes that are expected? Contact the employment attorneys at Drewry Simmons Vornehm LLP.

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