Biden Labor and Employment Activity in the First 48 Hours

During the first 100 days of the new administration, each Friday we will be providing a run-down of significant initiatives and events that will impact employers. We already have much to report. President Biden hit the ground running in his first hours of office, with multiple personnel changes and executive actions affecting public and private sector employers. These include the following:

NLRB General Counsel, Peter Robb, Deputy General Counsel, Alice Stock, Fired:

• Peter Robb, the General Counsel of the National Labor Relations Board, was fired by President Biden after being given the option to resign by 5:00 P.M. Wednesday. Robb, a Trump appointee sworn in the role in 2017, previously worked as a management-side labor lawyer. Robb was known for aggressively advancing many employer-friendly interpretations of the NLRA. His appointment was widely opposed by organized labor. Robb’s term was set to expire in the middle of November of 2021. Robb’s firing is the first mid-term involuntary termination of a sitting NLRB general counsel in 50 years. This move Robb’s is a clear sign that the Biden administration intends to move as quickly as possible to shift the Board to a more pro-union   
• Alice B. Stock, the Deputy General Counsel of the NLRB, was fired just 24 hours after the Biden Administration fired the Board GC. Similar to Robb, Stock was given the option to resign but determined it would be “detrimental to the operations of the NLRB” for her to retire. Her termination was effective Thursday at 5:00 P.M.
• What’s to come: It is unclear whether Senate Republicans will point to Robb’s and Stock’s mid-term dismissals as a basis for delaying the appointment of his replacement.  Regardless, Biden will likely appoint an acting GC in the interim who will immediately shift NLRB  investigation and enforcement priorities in a more pro-labor direction. 

Lauren McFerran appointed to Chair the NLRB. 

• President Biden appointed NLRB Member Lauren McFerran, the sole Democratic Board member, as chair, replacing John Ring, who was appointed by President Trump. McFerran was appointed by President Obama and served as a member of the NLRB from 2014-2019. In 2020, the Senate confirmed her re-nomination for a term expiring in 2024. McFerran often clashed with management-sided decisions of former NLRB General Counsel, Peter Robb. Her appointment as chair sheds further light on the pro-labor agenda of the Biden Administration and is further indication for businesses to buckle up as the Labor tides shift in.
• What’s to come: Despite the change of leadership, Republicans will still hold a 3-2 majority even after the vacant seat is filled. The first opportunity for Democrats to capture a majority will occur after member William Emanuel’s term expires in August 2021. Additional vacancies will occur when Member John Ring’s term expires in 2022, and Member Marvin Kaplan’s term expires in 2025. As chair, McFerran will have some control over the Board’s agenda but will have limited ability to create substantive change in Board law until the Board shifts to a Democratic majority with future Biden appointees. .

Democrat Charlotte Burrows Selected to Lead EEOC; Democrat Jocelyn Samuels to Serve as Vice Chair

• President Biden named Charlotte Burrows Chair of the Equal Employment Opportunity Commission, leaving Republican Janet Dhillon to step down and serve as a Commissioner. Burrows is a long-standing advocate for strong civil rights protections and was originally nominated to serve as a Commissioner of the EEOC by former President Obama in 2014. She was confirmed for a new term in 2019 that lasts through 2023. In her role, Burrows is responsible for implementing and administering the policies of the EEOC as well as the oversight and development of the organization. Democrat Jocelyn Samuels will serve as Vice Chair of the Commission replacing former Vice Chair Keith E. Sonderling, a Republican. Despite the changes in leadership, a Republican majority still stands.
• What’s to come: Currently, of the five Presidentially appointed Commissioners, three are Republican, leaving a Republican majority until the next expiration of a Republican term in July 2022. With a Democratic set of leaders and a Republican majority, clashes are to be expected as the Biden Administration continues to advance its employee friendly agenda.

Biden Signs Executive Order on Protecting Worker Health and Safety to reduce the risk of COVID-19:

• As previously reported, yesterday President Biden signed  a comprehensive executive order directing the Occupational Health and Safety Administration (OSHA) to intensify its efforts to protect employees from COVID-19 infection in the workplace.
• What’s to come: Though OSHA does not police health and safety compliance for Illinois public sector employees who are governed by the Illinois Occupational Safety and Health Act, the Executive Order directs OSHA to work with state and local government authorities and with the unions representing public sector workers to bolster COVID-19 protections for those employees. The President’s much-anticipated COVID-19 relief planis expected to go a step further and ask Congress to authorize OSHA to issue COVID-19 safety standards covering frontline public sector employees at the state and local level, which would be an unprecedented expansion of OSHA’s enforcement authority. At a minimum, employers should prepare to feel OSHA’s presence as the Biden administration has promised to increase staffing at the local OSHA office level.

Biden Repeals Trump’s Order to Ban Race and Sensitivity Trainings:

• President Joe Biden rescinded President Trump’s Executive Order restricted certain racial and sex sensitivity trainings for employees of federal contractors, students, recipients of certain federal grant funds as well as the military. The order holds that the Federal Government “should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” The now rescinded order had created consternation among both employer and civil rights groups and had been subject to several litigation challenges.