When writing about “what’s going on in Washington,” the mainstream media is largely focused on Congressional gridlock and news of inter-party conflicts or intraparty clashes concerning massive infrastructure and transformative budget bills. There is no doubting the importance of that focus, but it distracts from important activity elsewhere at the various federal agencies affecting labor and employment—the workplace—that will be the substance of this report.
Vaccine Mandates/OSHA
The Administration’s core response to the COVID pandemic is to mandate vaccinations at the workplace. The requ rements and the ambiguities of the Executive Orders and the Task Force Guidance for federal employees and federal contractors will be refined by the White House and the Federal Acquisition Regulatory Council and then litigated for months or years. The most awaited vaccine statement is the OSHA Emergency Temporary Standard, which has been delivered to the White House (OIRA) and will soon be issued. Suits have been threatened questioning, inter alia, whether the pandemic virus is a “grave danger” within OSHA’s emergency authority and challenging just how 100 employees became an enforceable threshold.
EEOC/Pay Data Collection
The Equal Employment Opportunity Commission (EEOC)—now led by a Democratic Chair, Hon. Charlotte Burrows, and Vice Chair, Hon. Jocelyn Samuels— is awaiting the report of the National Academy of Sciences (NAS) expert panel on the quality and utility of the employer pay data collected earlier through the agency’s EEO-1 Report Component 2. The NAS report, expected early in 2022, will provide the expert panel’s conclusions and recommendations regarding future data collections. The Commission is unlikely to reinstitute any pay data collection until Commissioner Janet Dhillon’s term ends on July 1, 2022 and she is replaced by a Democratic Commissioner. Further, the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) recently reversed its prior position and announced that the EEO-1 pay data may be used by OFCCP in assessing whether to investigate potential pay discrimination by federal contractors. Clearly, there will be greater interest in pay data collection by both the EEOC and OFCCP.
OFCCP/Verification
One of the last acts of the Trump OFCCP was to submit its Affirmative Action Program-Verification Initiative (AAVI) to OMB. The AAVI provides a platform for federal contractors to annually certify their compliance with OFCCP’s regulations and to upload their AAP and other data during compliance reviews. This program has become part of the Democratic agenda. On August 31, 2021, OMB approved the AAVI, and OFCCP is expected to provide guidance in the near future as to when contractors will be required to submit their first certification. Questions remain as to the specifics of the certification procedure and the formal definition of “compliance.”
Joint-Employer
This decades-long saga appears to be nearing its next resolution. The Biden Administration has asked that challenges to the rescission of the Trump-era Joint-Employer regulation be dismissed as moot. If granted, the way will be cleared for the issuance of a new Joint-Employer regulation that is expected to expand the doctrine and extend workplace liabilities to employers throughout the country, including, particularly, those using the franchise model. The substance of the new regulation may be found in the expansive notions offered by the past (and future?) Wage and Hour Administrator, David Weil, and also in the recent Advice
Memorandum from NLRB General Counsel, Jennifer Abruzzo, on the employee status of certain college athletes (GC 21-08). Among the Memorandum’s most significant aspects is an extended discussion of the indicia of “control,” often indirect, exercised by the NCAA, all of which would deem it a “joint-employer” of the new athlete-employees. These concepts will apply to the general economy in future joint-employer regulations from the Wage and Hour Division.
NLRB
The NLRB, now wholly in Democratic hands, is leading the Biden worker-centric agenda. In August, General Counsel Abruzzo issued Memorandum 21-04 identifying the many recent pro-business rulings she is seeking to overturn. She followed that with Memoranda 21-06 and 21-07 issued on September 6 and 15, 2021, respectively, in which she announced her intent to impose consequential damages on employers for violations of federal labor law and significantly stiffen settlements by demanding “100% of the back pay and benefits owed” and the inclusion of an admission of violation, thus making non-compliance a considerably costlier burden on employers but at the same time making settlements less likely.
Uber Memo in Doubt
Perhaps the most controversial action taken by terminated General Counsel Peter Robb was the 2019 Uber Memo, which declared that a whole body of “gig workers,” including Uber drivers and analogous workers, were not “employees” under the National Labor Relations Act and, therefore, could not file unfair labor practice violations or form unions. The legality of Robb’s termination still looms over the GC’s office, and Abruzzo’s authority to act before Robb’s term would have ended in November is subject to court challenge. November is upon us, and a withdrawal of the Uber Memo is anticipated. In its place, it is widely believed that the GC will also address why the newly designated “employees” will remain subject to the NLRA and not be misclassified as independent contractors. Aspects of California’s controversial AB 5, which broadly expanded the definition of “employee,” are thought to be considered as criteria for the NLRB, along with elements of prior proposals of the Obama Administration. The GC’s Memorandum will also be scrutinized as a model for DOL regulation of independent contractors.
Success Not Guaranteed
Should GC Abruzzo succeed in her efforts, she will have done by administrative action what could not be won in Congress by means of the PRO Act. But her success is by no means guaranteed. Nonetheless, employers should be on notice that an aggressive, pro-union NLRB has an activist GC who intends to change Board law and help unions in a manner not seen since the 1930s.
Conclusion
Many fundamental employment issues, such as classification, joint and several liabilities, and the meaning of equal pay are being determined by the agencies, with little public scrutiny. LEL practitioners should keep close watch on of the active agencies while Congress debates.