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

The Effect of the Election on Federal Employment Agencies

Written on .

Mr. Biden has stated he intends to be the most "pro-union President ever."  However, the process is going to be slow at the NLRB since Republicans currently enjoy a 3-1 majority, and the first Republican seat to expire will occur in August 2021.  The next Republican seat does not become vacant until 2022, and so the Republicans will still have a majority at the NLRB through 2021 unless someone leaves.

Some consider the NLRB General Counsel the most powerful person at the NLRB, even more than the Board members.  There is enormous pressure among unions to remove the current NLRB General Counsel, Peter Robb, a Trump appointee whose term does not expire until November 2021.  There is a question whether Robb can be legally fired without cause, and Biden knows he would create a political storm if he took this step.

There is a similar situation at the Equal Employment Opportunity Commission (EEOC), as the Republicans will have a majority of the five members until at least July 2022.  Some of the issues pending before the EEOC include conciliation of discrimination allegations, employer wellness plans, potential clarification of joint employer liability, pay equity data collection, and delegation of litigation authority to the EEOC General Counsel.

At the Department of Labor (DOL), immediate steps will be undertaken to undo policies of the previous administration, and the new DOL will particularly focus on industries that out-source employment to contractors or franchisees.  This emphasis will include broader interpretations of joint employment liability for affiliated businesses and the legal definition of "employee" in terms of misclassification of independent contractors.

Some of the quicker changes are likely to occur at OSHA.  As an example, the Obama Administration promoted a policy of public embarrassment of employers charged with violations, which the Trump Administration discontinued.  The new administration will return to the public humiliation concept and increase inspections and fines.  OSHA will also likely enact an emergency temporary standard for the Coronavirus.  There is an immediate opportunity to name a new member to the three-person OSHA Review Commission, which should quickly give the Democrats a 2-1 majority on this panel which is responsible for adjudicating appeals of OSHA citations and penalties.  There is likely to be broader use of the general duty clause which applies to hazards not the subject of particular standards.

This is part of our December 2020 Newsletter.

Click here to download the newsletter PDF

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.

Recent Content

medical healthcare, indoors

Supreme Court Again Upholds Affordable Care Act

California v. Texas, the Supreme Court has again upheld the provisions of the Affordable Care Act (ACA), often known as ObamaCare. A fede...
sticky notes, wall, indoors

No-match Social Security Letters Discontinued

In the past, the Social Security Administration (SSA) during periods of time has issued so-called "no-match letters" to employers with "a...

Supreme Court Allows Catholic Group to Exclude Foster-care Rights

The public and the courts continue to debate whether there should be religious exemptions to LGBT anti-discrimination laws. In other word...
restroom neon light

EEOC Addresses Controversial LGBT Restroom Policies

A year ago the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII outlawed workplace bias based on sexual orientation a...
buttons on a table, indoor

Labor Board to Reconsider Employer Restrictions on Wearing Buttons and Other Insignia in the Workplace

Many employers do not like the idea of employees wearing pro-union shirts or buttons on the job. In the past, however, and particularly d...
monopoly houses on a wooden table indoors

Supreme Court Rejects Union Access to Employer's Property in California

A strong ruling for employers' private property rights was issued by the U.S. Supreme Court in June in Cedar Point Nursery v. Hassid, No....

Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

Where Experience Counts

Thank you for visiting the firm's website. Please note that this website is intended for general information purposes only and does not constitute an offer of representation or create an attorney-client relationship with the firm. The firm welcomes receipt of electronic mail but the act of sending electronic mail alone does not create an attorney-client relationship. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the firm's copyright notice.

© 2020 Wimberly, Lawson, Steckel, Schneider & Stine P.C. | Site By JSM