By Mike O’Brien bio
Employers may be wondering how a Biden administration will affect workplace laws. Prior to the election, Biden’s campaign website gives some clues as to his priorities in this area. Biden lists the failure to pay minimum wage and overtime pay, forcing off-the-clock work, and misclassifying workers as problems resulting in billions of dollars a year in wage theft. To address those issues, he proposes a phased-in implementation of a $15 per hour federal minimum wage (including eliminating the tip credit). He also supports the adoption of a more stringent test for classifying workers as independent contractors, similar to the ABC test employed by California. This type of test would almost certainly result in many more workers being deemed employees and fewer being properly classified as independent contractors. Finally, Biden envisions a much more aggressive enforcement effort by federal agencies to target wage and hour and other workplace violations, saying he “will direct the U.S. Department of Labor to engage in meaningful, collaborative enforcement partnerships, including with the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission, the Internal Revenue Service, the Justice Department, and state tax, unemployment insurance, and labor agencies.”
In the area of labor relations, Biden is a strong supporter of unions, and supports legislation to strengthen organizing, as well as creating financial penalties against companies for interference with organizing efforts. He is likely to appoint National Labor Relations Board members with a more pro-union/worker sensibility. On that topic, he asserts: “Trump has undermined [the] progress [of the Obama administration] and the intent of the NLRB by appointing board members with long histories of anti-union activities. As president, Biden will appoint members to the NLRB who will protect, rather than sabotage, worker organizing, collective bargaining, and workers’ rights to engage in concerted activity whether or not they belong to a union.”
Other changes Biden advocates for include limiting non-compete agreements (except those necessary to protect trade secrets) and mandatory arbitration agreements, as well as strengthening workplace safety standards and increasing OSHA enforcement. For more details on Biden’s workplace-related proposals, you can go to his website at: THE BIDEN PLAN FOR STRENGTHENING WORKER ORGANIZING, COLLECTIVE BARGAINING, AND UNIONS.
Ultimately, many of the changes Biden proposes would require legislation to be enacted by Congress. Others could possibly be implemented by regulation or executive order.
What can employers expect from Justice Amy Coney Barrett?
Amy Coney Barrett has been confirmed by the United States Senate and sworn in as a United States Supreme Court justice, filling the seat of Justice Ruth Bader Ginsburg. Justice Barrett is widely viewed as conservative, and her addition to the Court is expected to shift its ideological balance. At just 48 years old, with a lifetime appointment to the Court, she is expected to impact U.S. jurisprudence for decades. She clerked for her mentor, conservative icon Justice Antonin Scalia, before practicing law in Washington, D.C. and becoming a law professor at Notre Dame. President Trump appointed her to the 7th Circuit Court of Appeals in 2017.
How might Justice Barrett’s appointment shape employment law? With just three years on the bench, Justice Barrett’s judicial record is somewhat limited, and it’s always difficult to predict how a judge might rule in a particular case. While most commentators appear to believe she will bring a business-friendly sensibility to the bench, Justice Barrett has authored opinions siding with employees at times, including in cases alleging racial and sexual harassment. She has tended to look less favorably on class action employment claims and retaliation claims, while favoring arbitration. One commentator observes that Justice Barrett appears to approach individual employment claims with a focus on personal responsibility, scrutinizing the facts of the case and ruling against the party she believes acted irresponsibly.
Justice Barrett immediately faced a case weighing religious freedom and LGBTQ rights. Earlier this month the Supreme Court heard arguments in Fulton v. City of Philadelphia. Fulton presents the issue of whether the city can ban Catholic Community Services from being a contracted provider of foster care services because of its refusal to evaluate same sex couples as foster parents. Justice Barrett’s approach to the case may provide insight as to how she might approach employment cases involving religious freedom and LGBTQ rights.
OSHA COVID-19 enforcement picks up steam
As of Oct. 9, 2020, OSHA had announced citations against 62 establishments for COVID-related violations, with proposed penalties totaling $913,133. On Oct. 29, it announced updated numbers reflecting a rather dramatic increase in enforcement. OSHA now reports that through Oct. 22, 2020, it cited 144 establishments for Covid-19 safety violations, with proposed penalties totaling $2,025,431. Thirty-two of those establishments were cited in just the one-week period between Oct. 16 and Oct. 22, 2020. Violations have included failure to report injury, illness, or fatality, recordkeeping lapses, failure to “implement a written respiratory protection program; [p]rovide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment,” and failure to “[c]omply with the General Duty Clause of the Occupational Safety and Health Act of 1970.” For more information, visit this link: Newsroom OSHA Releases. Employers with questions about their OSHA reporting obligations may wish to consult with employment law counsel. Information about individual citations is provided by OSHA at its Establishment Search Website, found at: OSHA Establishment Search.
DOL and Hewlett Packard settle gender pay discrimination allegations
The Department of Labor (DOL) recently issued a news release reporting that its Office of Federal Contract Compliance Programs (OFCCP) has reached an agreement with federal contractor Hewlett Packard to resolve allegations of systemic pay discrimination against 391 female workers. OFCCP asserts that a routine audit uncovered gender-based pay disparities in similar positions at Hewlett Packard locations in Idaho, Colorado, California, and Texas. The company did not admit liability, but agreed to pay $1,450,000 in back pay and interest to resolve the matter, and to undertake compensation self-audits and other steps to ensure compliance with federal laws. The DOL states that it “acknowledges these federal contractors’ voluntary involvement in resolving and addressing the preliminary findings we identified,” and that “OFCCP procedures offer federal contractors effective methods to ensure equitable pay to employees, enhance internal salary equity reviews and proactively resolve any disparities uncovered as soon as possible.” The OFCCP enforces federal laws making it illegal for federal contractors and subcontractors to discriminate in employment based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. For more information, see the full news release here: News Release.
EEOC issues final rule changing procedures
In October the EEOC announced changes to certain procedural regulations under Title VII, GINA, and the ADA, see: EEOC Issues Final Rule Revising Procedural Regulations Under Title VII, ADA, and GINA. In a newly-issued final rule, EEOC explicitly provides for the digital transmission of documents, and updates its procedures for “no cause” determinations. The charge filing process will not change under the new procedure, but the new rule expressly allows digital transmission of documents related to charges of discrimination. EEOC notes that, in practice, it has been working to provide digital services for several years, and the final rule “memorializes changes that have [already] been occurring.” The EEOC also changed the language to be used in its letters of determination issued at the end of an investigation, in the hope of “more clearly [communicating] with charging parties and respondents about the EEOC’s decision to close an investigation.” Under the new rule, when the EEOC determines that there is no cause to conclude that a violation of the laws it enforces has occurred, the following language will be used:
“The EEOC issues the following determination: The EEOC will not proceed further with its investigation, and makes no determination about whether further investigation would establish violations of the statute. This does not mean the claims have no merit. This determination does not certify that the respondent is in compliance with the statutes. The EEOC makes no finding as to the merits of any other issues that might be construed as having been raised by this charge.”
Procedural Regulations Under Title VII.
