John Kershner | Dreamstime
Biden And Obama

Commentary: Welcome to Barack Obama’s Third Term

Dec. 28, 2020
Joe Biden’s administration will bring back many workplace policies predating Trump.

When Joe Biden is sworn in as the next President of the United States on Jan. 20, 2021, we will be welcoming what in reality will be President Barack Obama’s third term, embracing many of the same regulatory policies that were well entrenched during the eight years he served before President Donald Trump.

One of the hallmarks of the Obama administration was a strong working alliance with the major labor unions, which resulted in the granting of many items on the unions’ wish list during the time Biden served as Vice President.

For example, Biden supports 12 weeks of paid leave for workers to care for newborns, newly adopted or fostered children, their own or a family member’s serious health condition, or to care for injured service members, a policy proposal that surfaced during the Obama years and later enjoyed support in modified form from the Trump administration.

Throughout Biden’s five-decades-long political career, he has been closely allied with organized labor, and he touted his closeness with unions during his campaign. In fact, some of his policy proposals at times echoed the union agenda word for word.

Trump had promised that for every new rule his administration created, two would be eliminated, but he explicitly excluded those dealing with safety and security from that draconian formula. However, during his term changes were made in how safety regulation and enforcement policy were made.

Prior to the election, Biden’s staff put together a list of Trump’s Executive Orders targeted for reversal by the new administration as quickly as the new President can after taking the oath, ranging from major policy changes to symbolic declarations. For example, it’s safe to expect the “2 for 1” order calling for ending two rules for every new one to be among the first to go.

Also targeted for elimination are stronger work requirements for welfare programs, protections for religious beliefs regarding Gay rights and abortion, and the elimination of what was seen by the Trump administration to be racially-divisive diversity training for federal contractors and employees.

Stemming illegal immigration was a top priority for Trump, but under Biden Obama’s “Dreamers” program will no longer face legal assault. During the campaign, Biden promised to find a way to bestow legal status on illegal aliens already in this country, which he estimated to number only 11 million people.

Aggressive enforcement campaigns involving immigration personnel raiding worksites will probably end, although it looks like enforcement will not be totally abandoned—at least not in the near term.

As soon as Biden was declared the winner, reports began to surface about immigrant caravans from Central America heading through Mexico to our border, which spurred Biden to announce just before Christmas that Trump’s border restrictions will remain in place for several months following his inauguration.

However, work on the border wall will grind to a halt, and there is a good chance an attempt will be mounted to eliminate the U.S. Immigration and Customs Enforcement agency (ICE) and replace it with something else because of the contempt in which it is held by many in the Democrat party.

A Renewed Safety Agenda

Changes at the Occupational Safety and Health Administration (OSHA) are sure to include the adoption of a COVID-19 emergency temporary standard (ETS) that had been sought unsuccessfully by labor unions, led by a militant AFL-CIO while Trump was President.

To get a small idea of what this could involve, you need only take a look at the ETS rules adopted by the states of Virginia, Oregon and most recently California, where the requirements are numerous and imposed significant additional burdens on employers.

While the content of the federal ETS is not likely to be much different from the employer guidances previously issued by OSHA and other federal agencies, unions believe they will generate more charges and carry heavier enforcement penalties. They also may include additional requirements for worker training, which are included in state ETS rules.

When it comes to safety enforcement in other areas, it‘s easy to anticipate that OSHA will get much tougher on employers. Under Trump, enforcement activities were pursued, but so were programs emphasizing collaborative efforts and educating employers about promoting and maintaining safe operations. Under Biden, expect skepticism to reign regarding employer safety incentive programs and less use of cooperative programs and partnerships like Voluntary Protection Programs.

Attorneys for the law firm of Seyfarth Shaw say they also foresee that OSHA will push for more high-profile cases (instance-by-instance willful citations resulting in $500,000 or more in penalties), with support from DOL’s Solicitor’s Office. “Even with an enhanced focus on allegedly egregious, high-dollar cases, we anticipate a Biden administration to expand the term ‘bad actor,’” they observe. “OSHA might be better served following data to pursue the most problematic employers, but the agency can sometimes lose focus in labeling all employers ‘bad.’”

During the Biden presidency, expect to see a return to the Obama-era OSHA’s stress on the “public shaming” of employers who are found to be in violation of its regulations. When an employer settles with the agency, sharply written press releases will proclaim the employer’s abject guilt in the strongest possible language. This was common practice during the Obama years.

The Seyfarth Shaw attorneys say employers should watch out for more inspections, more citations, and more willful and repeat citations. Also look for increased use of the multi-employer citation doctrine. “We anticipate expanded efforts to encourage whistleblowers to report perceived violations through a streamlined process, supplemented with increased resources. OSHA enforces more than 20 federal whistleblower laws, so its reach in this area goes beyond just the OSH Act,” they said.

Adoption of more stringent recordkeeping requirements and the increased use of employer records in enforcement also are foreseen. On the other hand, certain non-controversial actions, like the proposed revision of lift truck standards designed to deal with changes in technology, most likely won’t be affected by the change in administrations.

OSHA is an arm of the U.S. Department of Labor, as is the Mine Safety and Health Administration (MSHA), which mine unions have attacked for dragging its feet when it comes to developing enforcement standards and cracking down on the newest form of black lung disease, which incorporates a deadly form of silicosis. MSHA was run during the Trump era by a former mining company executive; expect someone more friendly to union views to take his place.

When it comes to safety policy, don’t be surprised if the Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) chooses to reopen the seemingly never-ending rulemaking proceeding for commercial drivers hours of service, aiming to reverse changes made under Trump strongly opposed by the Teamsters and public safety groups.

Biden’s announcement of his intention to nominate former South Bend, Ind., Mayor Pete Buttigieg as Secretary of Transportation received ridicule from some quarters because of his apparent lack of experience in dealing with these issues on more than a local level. Such criticism ignores the fact the Buttigieg presidential campaign laid out an ambitious and carefully wrought policy position on transportation infrastructure development.

As a result, it has been predicted that Buttigieg will deploy his not inconsiderable political skills to managing infrastructure legislative initiatives regarding funding and the selection and direction of highway and intermodal projects. Success in giving away billions of dollars could raise the 38-year-old’s political profile and give a boost to his presidential ambitions.

While Buttigieg concentrates his attention on higher-profile infrastructure projects, transportation safety policy will amble down predictable paths, hewing largely to the unions’ safety agendas within each individual mode.

Reversing Course on Labor

When it comes to labor law, you can be sure that both the Department of Labor and the National Labor Relations Board (NLRB) eventually will reverse course when it comes to the definition of joint employer status and in regard to how federal regulations define independent contractor status.

Biden’s campaign promise to labor was that he will “check the abuse of corporate power over labor and hold corporate executives personally accountable for violations of labor laws.” During the campaign, he also stated he would “encourage and incentivize unionization and collective bargaining; and ensure that workers are treated with dignity and receive the pay, benefits and workplace protections they deserve.”

Last February, the Democrat-dominated House of Representatives passed legislation called the Protecting the Right to Organize Act, which garnered Biden’s express support during the campaign. This bill is an attempt to apply California’s AB 5 anti-independent contractor law nationwide. It may continue to be blocked by the Senate but expect Biden to pursue it as both a guide for administrative action and as a legislative goal.

The “Protecting the Right to Organize” title of the bill tells you all you need to know about what is driving it. Under antitrust laws, unions can’t legally organize independent contractors to negotiate over pay and working conditions because they are considered small businesses.

Unions have vigorously pursued challenges to contractor status in the courts and state legislatures for many years. During the Obama administration, the then chief of DOL’s Wage and Hour Division declared that there are no such things as independent contractors, only misclassified employees—a view that was later stated word for word by Hillary Clinton during her 2016 presidential campaign.

There also is a good chance that DOL will reopen the overtime regulations adopted under Trump to make it more difficult for employers to claim some workers are exempt from those rules.

When it comes to the NLRB, don’t expect a lot of change in stated policy right away, or for that matter at the Equal Employment Opportunity Commission (EEOC). These boards were created by Congress to be independent of the President’s direct control. The Republican and Democrat commissioners who control their policy are nominated by the President, approved by the Senate and serve for staggered multi-year terms.

However, as individual terms expire, Biden will designate new members who will have considerable influence over policy. The NLRB is currently composed of three Republican members and one Democrat, with one seat vacant. Biden’s first opportunity to change the board majority to Democrat will be in August 2021.

Once the NLRB has a Democrat majority, you can rest assured the board will waste no time reversing the Trump Republican majority board’s decisions regarding ambush elections, the definition of joint employer and other employer-friendly decisions that were issued over the last several years.

With the EEOC, even when a Democrat majority is in place, don’t expect much change in the way individual complaints and charges are decided. The current commissioners’ terms solidify a Republican majority through at least July 2022. One issue to watch after that is employer reporting requirements. The more expansive requirements that were originally imposed by the Obama-era commission, such as the more detailed and complicated revised EEO-1 Form, are likely to return.

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