It’s Going to Be a Bumpy Ride – The Changes (So Far) to DOL and EEOC Employment Standards Under President Biden

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It should be a surprise to no one that the Biden Administration is taking immediate and decisive steps to reverse many of the business-friendly positions that were set forth by the U.S. Department of Labor and the Equal Employment Opportunity Commission under the Trump Administration. Here is a brief overview of the actions as of January 30, 2021:

  • In a very typical move for a new administration, President Biden issued a memo freezing agency rulemaking pending review. Any rules that have not yet been published in the Federal Register are to be withdrawn. In addition, the agencies should “consider” 60-day (or longer) postponements and additional comment periods for already published rules that have not yet taken effect. This would include the following recently-issued rules of some significance:
    • Employee v. Independent Contractor: The DOL issued a Final Rulemaking it easier to achieve independent contractor status under the Fair Labor Standards Act (FLSA), which we discussed in our January 6, 2021 E-lert. The rule is scheduled to take effect on March 8, 2021. Given the controversy over this rule, we expect that it will not take effect as is.
    • Tipped Employees: The DOL also issued a final rule that revises its tipped employee regulations to conform with amendments that were made to the Fair Labor Standards Act by the Consolidated Appropriations Act of 2018. This rule is scheduled to take effect on March 1, 2021. Given that the Biden Administration has withdrawn a recently-issued opinion letter that relied on this rule, there may be further changes to the rule before it is allowed to take effect.
    • EEOC’s Conciliation Procedures: On January 14, 2021, the EEOC issued a Final Rule for the stated purpose of streamlining its conciliation process for resolving findings of discrimination. This rule, which is scheduled to take effect on February 16, 2021, was approved by a 3-2 vote, and with the change in administration, it may be revisited.
    • Wellness Programs Under the ADA and GINA: Earlier this month, the EEOC issued proposed rules under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act addressing the incentives employers could offer as part of wellness programs that ask about employees’ health and/or ask them to undergo medical examinations. These rules have now been withdrawn.
  • Protecting Workers from COVID-19: President Biden issued an Executive Order on Protecting Worker Health and Safety that directs the DOL’s Occupational Safety and Health Administration to do the following, among other things: issue further guidance to employers on workplace safety during the pandemic; consider whether to issue emergency temporary COVID-19 standards, focus enforcement efforts on violations putting the greatest number of employees at risk.
  • Expanding “Sex” Under Federal Anti-Discrimination Laws to Include Sexual Orientation and Gender Identity. Following the Supreme Court’s landmark ruling extending discrimination protections under Title VII to gay and transgender employees, which we discussed in a June 15, 2020 E-lert, President Biden has now issued an Executive Order Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The EO affirms the Supreme Court’s reasoning that “sex” under Title VII necessarily includes sexual orientation and gender identity, and extends it to all other federal anti-discrimination laws, including Title IX of the Education Amendments Act, the Fair Housing Act, and the Immigration and Nationality Act.
  • Revoking Trump’s “No Divisive Training” Order: As we previously discussed, President Trump’s Executive Order prohibiting “divisive” training by government contractors was extremely controversial, and has recently been enjoined by a federal court. Now, President Biden has issued an Executive Order Advancing Racial Equity and Support for Underserved Communities Through the Federal Government that revokes that order and further directs agencies to assess equity in its programs and policies, to identify and remove barriers to equity, and to promote equitable delivery of government benefits and opportunities, among other things.

President Biden has also indicated that he intends to seek an increase in the minimum wage to $15/hour, as well as paid leave mandates, among other things on the employment front. We will keep you posted on these efforts.