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The Effect of the Election on Federal Employment Agencies

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.

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