Shortly after taking office, President Joe Biden wasted no time in implementing sweeping changes undoing several Trump Administration actions. This is the first of what has been promised to be 10 days of sweeping changes to a variety of topics. Of this first salvo of Executive Actions taken yesterday (15 Executive Orders and 2 Memoranda), a number are noteworthy for employers:
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.
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!