Biden Administration Developments

When a new president takes office, there are immediate changes to policy and to the political oversight responsible for executing the priorities of the new Administration. Given the speed at which these changes happen, it can be difficult for compliance professionals to track developments and understand which have immediate impact and which are more likely to have effect down the road. We have created this resource so that CWC members have a central location to quickly review actions taken early in the Biden Administration, whether personnel or policy related, that are likely to impact workplace compliance. If you have any workplace compliance or risk management questions related to actions by the new administration, of if you would like to make us aware of any developments we might have missed, please email us at info@cwc.org.

Personnel

On March 26, 2021, the White House announced that President Biden intends to re-nominate Democratic EEOC Commissioner Jocelyn Samuels to serve a second term. Samuels' current term is scheduled to end on July 1, 2021. However, she is permitted to remain in office throughout the year as long as her nomination remains pending before the Senate.
On March 26, 2021, the White House announced that President Biden intends to nominate Seema Nanda to serve as Solicitor of Labor, the third most senior position within the Department of Labor. Ms. Nanda served in several DOL roles during the Obama Administration. She also formerly served in leadership roles with the Democratic National Committee and the Leadership Conference on Civil and Human Rights.
On March 22, 2021, the U.S. Senate voted to confirm the nomination of Boston Mayor Marty Walsh to serve as Secretary of Labor by a vote of 68 to 29. 
Senate majority leader Schumer has filed a "cloture" motion to end debate on the nomination of Marty Walsh to serve as Secretary of Labor. Walsh is expected to be easily confirmed by the Senate when it takes up his nomination in the coming days.

Meanwhile, the Senate's Committee on Health, Education, Labor, and Pensions has scheduled a confirmation hearing on President Biden's nominee to serve as Deputy Secretary of Labor, Julie Su, for Tuesday, March 16, 2021, at 10:00 a.m. The hearing will be webcast on the Committee's website.
On March 12, 2021, the Equal Employment Opportunity Commission announced that president Biden had appointed Gwendolyn Young Reams as the EEOC's Acting General Counsel. Ms. Reams is a long time career EEOC attorney who has served as Associate General Counsel for Litigation Management at the EEOC for 20 years.
On Friday, March 5, 2021, President Biden fired the EEOC's General Counsel, Sharon Fast Gustafson who had more than two years remaining on her 4-year term. This is the first time that an EEOC General Counsel has been fired. CWC will publish additional analysis in the near future.
Seth D. Harris has joined the Biden White House as deputy assistant to the president for labor and economic matters. Mr. Harris has long experience at DOL, having served as Deputy Secretary of Labor and Acting Secretary during the Obama Administration. Harris also served at DOL in senior policy roles during a majority of the Clinton Administration.
On February 17, 2021, the White House announced that President Biden has nominated Jennifer Abruzzo to serve as the next General Counsel (GC) of the National Labor Relations Board (NLRB). Ms. Abruzzo, who currently serves as special counsel for strategic initiatives with the Communications Workers of America, was a long-time career NLRB employee who eventually served as Deputy GC under former Democratic GC Richard Griffin. Ms. Abruzzo served as Acting GC after GC Griffin's term expired and until former Trump-appointee Peter Robb became GC in November 2017.
On February 11, 2021, the Senate Health, Education, Labor, and Pensions Committee voted to advance the nomination of Boston Mayor Marty Walsh to be the next Secretary of Labor. The vote was 18 to 4, with 7 Republicans joining all Committee Democrats to approve the nomination. Mayor Walsh's nomination is now ready for consideration by the full Senate.
On February 10, 2021, President Biden announced that he intended to appoint Julie A. Su as Deputy Secretary of Labor, the most senior political position within the Department of Labor (DOL) after the Secretary. Su is currently Secretary of the California Labor and Workforce Development Agency, a position she has held for a little over two years. Prior to that, she served as California Labor Commissioner.

The Office of Information and Regulatory Affairs (OIRA) has named Alex Barron and K. Sabeel Rahman as Senior Counselors. Barron served in the Environmental Protection Agency’s (EPA) Office of Policy during the Obama Administration, while Rahman served as the president of Demos, a liberal think tank.

Wendy Chun-Hoon has been appointed Director of the Department of Labor’s Women’s Bureau and Analili Mejia will serve as Deputy Director. Ms. Chun-Hoon comes to the Bureau after serving as the Executive Director of Family Values @ Work, an advocacy group focused on paid leave issues. Before Ms. Mejia received her appointment, she served as the Executive Director of the New Jersey Working Families and as the Political Director on Bernie Sander’s presidential campaign.

Dariely Rodriguez has joined the Office of Federal Contract Compliance Programs (OFCCP) as its Chief of Staff. Before joining OFCCP, Ms. Rodriguez served as the director of the economic justice project of the Lawyers’ Committee for Civil Rights Under Law.

President Biden has named Elena Goldstein as the Department of Labor’s Deputy Solicitor. Ms. Goldstein will serve as the interim head of the Labor Department's legal office until Biden appoints a Solicitor of Labor.  Ms. Goldstein previously served as the Acting Chief of the Civil Rights Bureau in the New York Attorney General's Office.

In the last several days, the White House and Department of Labor (DOL)  have announced several additional political appointees who will have a role in regulating the workplace. Perhaps most prominently, President Biden has named Prontia Gupta to serve on the White House Domestic Policy Counsel as special assistant for labor and workers. Ms. Gupta served in DOL's Women's Bureau during the Obama Administration. Since then she has served as director of job quality for the Center for Law and Social Policy, a left-leaning think tank.

Other recent announcements include Dariely Rodriguez who is now chief of staff at DOL's Office of Federal Contract Compliance Programs and Elena Goldstein who is the new deputy solicitor of labor. Ms. Rodriguez recently served as director of the economic justice project of the Lawyers' Committee for Civil Rights Under Law. Ms. Goldstein was the former acting chief of the civil rights bureau in the New York Attorney General's office.

On February 4, 2021, the Senate Committee on Health, Education, Labor, and Pensions held a confirmation hearing on President Biden's nomination of Boston Mayor Marty Walsh to serve as the next Secretary of Labor. At the conclusion of the hearing, Ranking Republican Senator Richard Burr (R-NC) indicated that he looked forward to supporting Walsh's nomination, indicating a partisan fight over his confirmation is unlikely. Committee Chair Patty Murray (D-WA) indicated that she intended to schedule a vote to advance Walsh's nomination on February 11, 2021.
On February 2, 2021, the U.S. Senate confirmed Alejandro Mayorkas as the next Secretary of Homeland Security by a vote of 56 to 43. He was sworn in later that day, DHS has a lead role in enforcing the majority of immigration-related laws through its sub-agencies, including US  Citizenship and Immigration Services and US Immigration and Customs Enforcement.
On January 25, 2021, the National Labor Relations Board (NLRB) announced that career NLRB attorney Peter Sung Ohr had been designated as the agency's Acting General Counsel by President Biden. Ohr most recently served as Regional Director of the agency's Chicago Regional Office. The move comes after President Biden fired NLRB General Counsel Peter Robb on his first day in office and terminated Deputy General Counsel Alice Stock the next day.

On January 20, 2021, President Biden designated Lauren McFerran, currently the National Labor Relations Board’s (NLRB) lone Democratic Member, as the Board’s Chairman. Former Chairman John Ring remains a Board Member along with fellow Republican Members Emanuel and Kaplan.

Also on January 20, 2021, in an unprecedented move, President Biden fired Republican General Counsel Peter Robb. 

On January 20, 2021, President Biden designated Charlotte Burrows as Chair of the Equal Employment Opportunity Commission (EEOC) and Jocelyn Samuels as Vice Chair. Former Chair Janet Dhillon and former Vice Chair Sonderling remain EEOC Commissioners along with Commissioner Andrea Lucas. More information about the designations and other personnel decisions made during President Biden's first day in office is available here.

On January 20, 2021, the Department of Labor announced that former EEOC Commissioner Jenny Yang has been named the new Director of DOL’s Office of Federal Contract Compliance Programs (OFCCP). Notably, Ms. Yang presided over the EEOC’s efforts to develop the EEO-1 Component 2 data collection tool. More information about Ms. Yang's appointment and other political appointments made on President Biden's first day is available here.

Policy

On March 23, 2021, the Department of Labor's Wage and Hour Administration unveiled two notices of proposed rulemaking related to the final tip regulations that DOL had published in December. The two proposals are scheduled to be published in the Federal Register on March 25.

In short, DOL will allow much of the final rule to go into effect, especially those parts that closely track statutory changes made by Congress. However, DOL is proposing to further delay several other provisions while it simultaneously considers changes to provisions related to when tipped workers perform dual jobs or related duties. DOL is also reconsidering provisions related to issuance of civil money penalties. DOL also seeks comments on some parts of the rule that will go into effect, such as the definition of "managers and supervisors." CWC will publish further analysis in the near future.
The Department of Labor is scheduled to propose withdrawing its regulations on joint employment under the Fair Labor Standards Act on March 12, 2021. The Trump Administration revised the rule effective March 16, 2020. Interestingly DOL has proposed withdrawing not only the revisions made by the Trump Administration, but the regulations in their entirety. DOL will accept comments on its proposal for 30 days and CWC intends to submit comments.
On March 12, 2021, the Department of Labor's Wage and Hour Division is scheduled to propose withdrawing the Trump Administration's final rule regarding classification of workers as employees or independent contractors. The final rule had been a so-called "midnight regulation" and never went into effect. DOL will accept comments on its proposed withdrawal of the rule for 30 days and CWC intends to submit comments.
On March 8, 2021, President Biden signed Executive Order 14020, which establishes a White House Gender Policy Council. Among other things, the Council is charged with advancing gender equity and equality, including combatting systemic biases and discrimination, including sexual harassment, and to advance women's human rights. CWC will publish additional analysis in the near future.
On March 2, 2021, OFCCP announced that it was modifying its 2020 Supply and Service Scheduling List to remove establishments that had been listed for focused reviews or compliance checks. Remaining on the list are scheduled compliance checks, including establishment-based reviews, Corporate Management Compliance Evaluation (CMCE) reviews, FAAP reviews, and university reviews. This change does not impact unscheduled reviews from prior scheduling lists. CWC will publish additional analysis in the coming days. 

As expected, the Department of Labor has now delayed the effective dates of two final rules that had been published by DOL’s Wage and Hour Division in the final days of the Trump Administration. The effective date of DOL’s final revisions to its tip pooling and tip ownership regulations has been pushed back from March 1, 2021, to April 30. Similarly, the effective date of DOL’s final rules governing the classification of workers as employees or independent contractors has been postponed from March 8, 2021, until May 7. CWC had submitted comments asking DOL to allow the rules to go into effect, though it was clear from the outset that DOL had no intention of doing so. DOL will use the delay to determine whether to withdraw the rules or further revise them.

On February 23, 2021, the Department of Labor sent a draft of proposed revisions to regulations interpreting the Fair Labor Standards Act's joint employment provisions to the White House Office of Management and Budget for review. The Trump Administration finalized its revisions to the regulations in January 2020, although they were immediately challenged in federal court. This is the first substantive proposed rule sent from DOL to OMB during the Biden Administration. 
On January 29, 2021, the Labor Department' s Wage and Hour Division announced that it was terminating the Payroll Audit Independent Determination program, a program that it started in 2018 to help facilitate employer payments of backpay to employees when an employer discovered that it may have inadvertently violated the Fair Labor Standards Act. For more information, see CWC Memorandum 21-035.
In a court filing made on February 9, 2021, the Department of Justice announced that the Department of Labor (DOL) intended to propose rescinding regulations recently revised by DOL's Office of Contract Compliance Programs (OFCCP) related to religious discrimination under Executive Order 11246.  The filing, which comes in a case where 14 states and the District of Columbia challenged the revised regulation, indicates that the rescission process will take several months as it entails notice and comment rulemaking. DOL, though DOJ, is required to provide the court with a status report on the matter by March 26, 2021.
Last year, the Department of Labor announced new rules governing the agency's process for promulgating guidance documents. However, on January 27, 2021, DOL announced that the rules had been rescinded. 
On January 27, 2021, the EEOC announced that it had concluded two pilot programs initiated last year related to the agency's mediation and conciliation programs. The EEOC had just announced the extension of the mediation program a few weeks earlier.
On January 7, 2021, the Equal Employment Opportunity Commission (EEOC) announced that it was proposing revisions to its regulations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act related to corporate wellness programs. However, the proposals were not published in the Federal Register before President Biden took office. The proposals have now been withdrawn pending further review.
In the final days of the Trump Administration, several initiatives were advanced in an effort to significantly alter the H-1B program. The Biden Administration has now taken steps to roll back these initiatives. Specifically:
On January 15, 2021, US Citizenship and Naturalization Services (USCIS) announced it had finalized revisions to its H-1B regulations. However, the revisions were not published in the Federal Register before President Biden took office, so they were withdrawn.
On January 8, 2021, USCIS published revisions to the H-1B lottery that were to be effective on March 9. However, USCIS has now announced that it is suspending the effective date until December 31, 2021. It will accept comments on its proposal for 30 days.
Finally, on January 14, 2021, the Labor Department's Employment and Training Administration (ETA) proposed modifying the prevailing wage rules for H-1B workers, a change that was to be effective on March 15. ETA has now announced that the effective date has been postponed until May 14, 2021. It will accept comments on the proposal until February 16, 2021.

Also on January 20, 2021, President Biden issued a memorandum instructing the DHS Secretary and Attorney General to preserve and strengthen the Deferred Action for Childhood Arrivals (DACA) guidance, essentially cancelling out any remaining actions by the Trump Administration to rescind or limit the DACA program.

On his first day in office, President Biden revoked former President Trump Executive Orders and Presidential Proclamations that were issued to restrict the travel of foreigners attempting to enter the U.S. from predominantly Muslim countries and later from African countries. President Biden also resumed visa processing activities in U.S. consulates and embassies for those seeking to enter the country, including the restoration of the H-1B visa program.

Also on his first day in office, President Biden signed Executive Order 13988 that establishes a national policy of equal treatment based on sexual orientation and gender identity consistent with the Supreme Court’s interpretation of Title VII of the Civil Rights Act of 1964. The E.O. also instructs federal agencies to examine all regulations and policies preventing discrimination based on sex to ensure they are consistent with this new policy, unless there is a contrary indication in federal law.

On his first day in office, President Biden signed Executive Order 13992 that rescinds several Trump-era Executive Orders related to regulatory reform. In addition, President Biden signed a memorandum directing OMB Director to work with federal agency representatives to craft a series of recommendations, through public engagement with relevant stakeholders, to improve and modernize the federal regulatory review process.

Shortly after President Biden took office, his Chief of Staff Ronald Klain signed a "Regulatory Freeze" memo directing federal agencies to:
 1) Refrain from issue any new rule until approved by a Biden-appointee;
 2) Withdraw any rules that have been sent to the Federal Register for publication but have not yet been published; and
 3) For rules that have been published, but not yet gone into effect, “consider” postponing the effective date for 60 days and to provide a public comment period for an additional 30 days to allow comments as to whether the rule should be reconsidered or revoked.

On his first day in office, President Biden signed Executive Order 13985 that, among other things, rescinds the controversial Trump E.O. 13950 which banned federal contractors and federal grantee recipients from conducting race or sex stereotyping or scapegoating workplace training programs.

Resources

Former Boston Mayor Marty Walsh Sworn In as New Secretary of Labor The U.S. Senate this week confirmed former local union official and Boston Mayor Marty Walsh to be the next Secretary of Labor. Mr. Walsh, an unabashed pro-worker advocate, is likely to push an active policy agenda.

DOL Proposes To Formally Withdraw Trump-Era FLSA Rules As expected, the Biden Administration’s Labor Department is proposing to withdraw two industry-supported regulations issued during the previous administration that were designed to clarify joint employer and independent contractor determinations unde

New Biden Executive Order Creates White House “Gender Policy Council” President Biden has issued a new Executive Order creating a White House Gender Policy Council to develop a strategy to advance gender equity throughout the United States and abroad.

Union Lawyer Jennifer Abruzzo Tapped for Contested NLRB General Counsel Vacancy A few weeks ago, in an unprecedented action, President Biden fired NLRB General Counsel Peter Robb 10 months before his term was scheduled to expire. The President has since submitted his choice to take Robb’s place, even while controversy over Robb’

In Another Controversial Termination, Biden Fires EEOC’s General Counsel Just a few weeks after his controversial termination of former NLRB General Counsel Peter Robb, President Biden has now fired EEOC General Counsel Sharon Fast Gustafson.