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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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