Among the precedent in the General Counsel’s crosshairs are several that dramatically expanded employee protections and union leverage during the Biden administration. Carey has identified pending cases through which she is seeking to overturn including, Amazon.com Services LLC (which restricted employers’ ability to hold mandatory meetings to discuss unionization), McLaren Macomb (which limited the enforceability of certain severance agreement provisions), and Stericycle (which adopted a more employee-friendly standard for evaluating the legality of employer work rules). Beyond those, Carey has also signaled her intent to challenge Cemex Construction Materials Pacific LLC, which lowered the threshold for the Board to issue bargaining orders following employer unfair labor practices during union elections.  The GC has also publicly expressed interest in targeting:  Thryv, Inc. (required employers to compensate workers for downstream economic harms from labor law violations); Valley Hospital Medical Center II (mandated that employers continue honoring dues-checkoff arrangements after a collective bargaining agreement expires); and, finally, Lion Elastomers LLC (revived a context-dependent test shielding employee misconduct during protected activity.

If the Board moves to reverse these decisions, and the current composition suggests it has the votes to do so, the legal and practical effects for employers could be substantial. A reversal of Stericycle would give employers greater latitude to maintain and enforce workplace conduct policies, handbooks, and rules without the heightened scrutiny that standard imposed.  Rolling back McLaren Macomb could restore employers’ ability to include certain non-disparagement and confidentiality clauses in severance agreements. Overturning Amazon would allow employers to once again hold mandatory meetings to communicate their views on unionization, something many management-side practitioners have long considered vital during organizing campaigns.  A return to a weightier bargaining-order standard, as Carey has urged in seeking the Board to revisit Cemex, would make it harder for unions to gain recognition without a traditional election.   All of which would be positive developments for employers.

Bottom Line

Employer’s should watch these developments carefully and be prepared to take steps to operationalize any new standards.

The post NLRB General Counsel Signals The Targeting of Key Biden-Era Precedents: What Employers Need to Know. appeared first on Felhaber Larson.

Rulemaking Regulatory Freeze

In a Memorandum issued by the new administration to federal government executive departments and agencies, the new administration requested that the departments immediately withdraw any pending rules which have not been published in the Federal Registrar (i.e. Final Rules). This is a direct response to the Trump administration’s increased use of rulemaking to enact/change policy, especially the flurry of rules which were passed at the very end of Trump’s term. Further, unless any rule making moving forward is necessitated by “urgent circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise,” the memorandum instructs that no new rules may be proposed or issued until they have been reviewed and approved by Biden Administration agents.

The Memorandum further directs that “[w]ith respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect,” that agencies are to “consider postponing the rules’ effective dates for 60 days from the date of this memorandum” “for the purpose of reviewing any questions of fact, law, and policy the rules may raise.”

As we had previously written earlier this month, the Department of Labor issued a new test for determining whether a worker is an Independent Contractor for FLSA purposes, and the Rule establishing this test is not scheduled to go into effect until March 8, 2021, placing it squarely in the cross-hairs of the Regulatory Freeze Memorandum. As a result, it is highly likely that the new Independent Contractor test will be delayed/changed before it becomes effective.

Federal Contractor Training Contents

As we had previously written about last year, the Trump administration made sweeping changes to the contents of required federal contractor affirmative action training, suggesting that diversity training materials remove reference to concepts such as “white privilege,” “unconscious bias,” “systemic racism,” and “intersectionality.” This Order was strongly criticized by Federal Contractors themselves (among other groups) because it required those entities to completely redesign their training curriculum with little to no warning, curriculum which focused in large part on removing and accounting for implicit biases during the hiring process. In one of President Biden’s first-day Orders, the Trump Administration’s sweeping diversity training order was rescinded, as part of what the new Administration describes as a “whole-of-government initiative to advance racial equity.”

LGBTQ+ Protection Focus

In a final relevant Executive Order, the Biden Administration ordered administrative agencies to extend the Supreme Court’s holding in the case of Bostock v. Clayton County – which held that Title VII’s prohibition on discrimination because of “sex” covers discrimination on the basis of gender identity and sexual orientation – to other laws that prohibit sex discrimination, for example, the Fair Housing Act. We had previously reported on the Supreme Court’s decision in Bostock here.

While these other laws discussed in the Executive Order cover topics which do not have an impact on employers (for example, discrimination in education under Title XI of the Civil Rights Act), this Executive Order shows the Biden Administration’s increased commitment to protecting LGBTQ+ rights, and may signal increased enforcement actions moving forward by federal agencies such as the EEOC with respect to claims of discrimination based on gender identity and sexual orientation.

Bottom Line

Yesterday’s Orders and Memoranda are the first of 53 promised Executive Actions to come over the next 10 days. While acting immediately upon taking office has become increasingly common in recent presidential administrations, these Order signal that there is a “new sheriff in town” with respect to the regulatory paradigm for multiple areas of federal governance.

We will continue to monitor and update over the course of the next few days with respect to any executive orders which may have interest to employers. Stay tuned!

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