We Are Open (With Safety Precautions) & Ready To Help:  Click Here To Watched Our Covid-19 Webinar — What Employers Need to Know

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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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