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New Administration Fires EEOC General Counsel during Term of Office, Just like Top NLRB Lawyer

The Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB) are independent agencies within the Executive Branch of government, and no American President until President Biden has fired the General Counsel of these agencies during their term of office. Since the firing of the NLRB General Counsel, respondents in NLRB cases have challenged the NLRB's prosecutorial power. Employers will argue that any action the new NLRB General Counsel takes before the prior General Counsel's term would have ended in November, is unenforceable. A number of trade associations and at least four GOP Senators led by Sen. Rand Paul sent the President a letter on February 19, 2021 calling the NLRB General Counsel's termination "nakedly political" and reminiscent of former President Nixon's firing of Watergate special prosecutor Archibald Cox in 1973, a move that became popularly known as the "Saturday night massacre." Republicans should maintain a majority on the EEOC Commission through July 20, 2022, when GOP Commissioner Janet Dhillon's term expires, at which point the Democrats are expected to assume control once a nominee can be confirmed.

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OSHA Responds to Executive Order with New Covid-19 National Emphasis Program

In a January 2021 Executive Order, President Biden directed the Occupational Safety and Health Administration (OSHA) to establish a COVID-19 National Emphasis Program and asked the agency to determine by March 15, 2021 whether to issue an Emergency Temporary Standard tailored to the pandemic.  A report from the Office of Inspector General of the Department of Labor in February first tasked OSHA for conducting about 50% fewer inspections from February 2020 through October 2020 compared with the same period a year earlier and for not making in-person visits for many of those inspections.  The current National Emphasis Program issued as effective on March 12, 2021, is responsive to those directives.  The Program will remain in effect for up to one (1) year from its issuance.  In the COVID-19 pandemic’s first 12 months, only about 10% of federal workplace safety inspections were virus-related, and only four violations of the General Duty Clause were found.  Most of the violations found pertained to respiratory protection rules, and secondly, for violations of requirements to record worker deaths or illness.  The previous Administration had determined that an Emergency Rule specific to COVID-19 was not necessary because OSHA could rely on the General Duty Clause.  

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Controversial Pro-union Pro Act Passed by House

The Protecting the Right to Organize Act (the PRO Act) has been a long-term goal of organized labor.  It previously passed the House of Representatives last year, but the Democrats never had sufficient power in the Senate to bring the bill to a vote there.  On March 9, 2021, the House voted 225-206 to pass H.R. 842, the PRO Act.   This Bill has long been considered to be a "Christmas tree list" of demands by organized labor.  Among other things, this Bill as passed by the House would do the following.

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Joint Employer and Independent Contractor Regulations to Be Reviewed by the Biden Administration

On March 11, 2021, the Department of Labor (DOL) indicated it would review the previous Administration's worker classification regulation of determining independent contractor relationships.  The Wage and Hour Division will allow a 30-day comment period on its proposal to repeal the Trump rule, which had made it easier to classify workers as independent contractors rather than employees.  On the same day, the DOL announced that it is seeking public comment on whether to repeal the Trump Administration Joint-Employer Rule, which went into effect last year but is currently in litigation in the Second Circuit Court of Appeals.  Industry groups intervened in the litigation to defend the Trump rule knowing that a new Administration might try to rescind it.

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Developments from Working from Home

In February of 2020, only 8% of the U.S. workforce did their job entirely from home.  As the pandemic took hold, that number increased to 35% in May, and the general movement to homework resulted in home workers working in less densely populated areas.  

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Other Biden Actions Show Dramatic Change towards Labor Issues

The Biden Administration has immediately moved to freeze pending Department of Labor (DOL) regulations that would make it easier to designate workers as independent contractors.  This rule was previously stated to take effect March 8, 2021.  A new and finalized similar rule from the Equal Employment Opportunity Commission (EEOC) has similarly been frozen.  Other important rules that are now frozen and subject to review include the DOL regulation that would allow businesses to pay tipped workers lower minimum wages rather than a standard of $7.25 for hours spent on work that does not generate gratuities, EEOC rules that would give employers more information from the EEOC during the conciliation process, a DOL initiative that encourages employers to self-report wage and hour violations to DOL in return for protection against further legal liability, a DOL rule that would have raised wage rates for specialty occupation visa holders, and a rule which would have prohibited stereotyping and scape-goating in diversity training.  The latter type diversity training initiative was deemed to be unnecessary and chilling of legitimate diversity training.  DOL has also announced that it will rescind a regulation broadening the defenses that religious federal contractors can use when accused of workplace discrimination.

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New Administration Begins Pro-union Agenda by Controversial Firing of the NLRB General Counsel

On the same day of President Biden's swearing-in, the new White House delivered to National Labor Relations Board (NLRB) General Counsel Peter Robb an ultimatum to resign by 5:00 p.m. or be fired.  No President in U.S. history had taken such a bold move as the NLRB General Counsel position is a four-year appointment at an independent federal agency.  The White House provided no cause for the action.

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Republicans Using Same Type of Legal Challenges of Biden Policies Democrats Used against Trump

Republicans have taken a playbook that the Democrats used against Trump in going to federal court to seek nationwide injunctions against policy changes.  In late January 2021, a federal judge in Texas blocked the Biden Administration's 100-day pause on deportations.  Judge Tipton of the Southern District of Texas granted a temporary restraining order after the Texas Attorney General sued the new Administration to ensure deportations would continue to be carried out.  The judge ruled that the Administration's January 20 memorandum to unilaterally stop deporting immigrants already with final orders of removal likely violated federal law.  Further, he said the Biden Administration's move likely violated the Administrative Procedures Act that requires federal agencies to act reasonably in adopting new policies.  

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Osha Issues New and Stronger Virus Guidance

The Occupational Safety and Health Administration (OSHA) announced on January 29, 2021, new and stronger workplace guidance on the Coronavirus.  Implementing a Coronavirus Prevention Program, according to OSHA, is the most effective way to reduce the spread of the virus.  The guidance recommends several essential elements in a prevention program:

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Issue of Employees Participating in Demonstrations and Protests

The January 6, 2021 protest in Washington, D.C. raises questions about participation of employees in protests that may turn into riots.  Unlike governmental employers, private businesses have no "free speech" obligations to their employees participating in such protests.  However, other legal issues can arise as to subsequent actions against those protesting.  

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