The Biden administration is closing in on its first 100 days. Based on the strong progressive agenda of the campaign, it was expected that the Department of Labor would take very bold and aggressive actions out of the gate.
Official rule and policy changes in the DOL’s worker protection agencies, however, have been measured. Nevertheless, the first 100 days have revealed strong signals about where the DOL is going during this administration. We check in on significant DOL developments in the first 100 days and what we expect moving forward.
Budget Request and Regulatory Agenda
On April 21, the administration released its budget outline seeking a 14% increase in funding for the DOL. Agency budgets requests are always wish lists rather than solid policy proposals.
The Biden outline seeks a 17% increase in funding for its worker protection agencies’ funding and includes generic guarantees to protect wages and fight employment bias. One notable policy specific includes funds to “address the misclassification of workers as independent contractors.”
Other, broader initiatives include additional funding for apprenticeship programs, worker training programs, unemployment insurance process improvements, and clean energy employment initiatives.
Twice a year the Office of Management and Budget releases its regulatory agenda, which details upcoming rulemaking actions. The spring 2021 agenda is several months away, so we do not have a window into the administration’s rulemaking priorities. Based on Biden’s campaign platform, we expect significant updates to pension protections, worker safety standards, and union reporting requirements.
Labor Secretary Marty Walsh encountered a smooth path to confirmation.A notable development was that he did not commit to OSHA issuing an emergency workplace standard related to Covid-19 exposure.
Based on his confirmation hearing, Walsh intends to focus on broad progressive priorities such as increased enforcement by worker protection agencies, expansion of job training programs, and rolling back Trump initiatives that were seen as restricting worker pay and rights.
Julie Su, is the nominee for deputy secretary of labor. Her confirmation hearing included questions regarding her tenure in California as its labor chief. Although she was approved by the Senate Health, Education, Labor, and Pensions committee, it wasn’t clear when she would be considered by the full Senate.
Quick Assessments of Key Agencies at 100 Days
No Emergency Temporary Standard at OSHA. As noted above, it was widely expected that under the new administration, the Occupational Safety and Health Administration would quickly issue an emergency temporary standard outlining specific workplace rules related to Covid-19. This has not happened—likely due to vacancies in the top legal and agency posts. To push out an important policy, it makes sense that these officials be in place and sign off on a new standard to ward off the inevitable political (and likely legal) challenges.
In the meantime, OSHA’s new guidance, based largely on existing Centers for Disease Control and Prevention protocols, will continue to be the agency’s position on workplace safety.
Wage-and-Hour Division Reversed Course on Independent Contractor Status. Trump administration’s rules making it easier to classify workers as independent contractors surfaced as a top priority during the first 100 days. Julie Su’s nomination as deputy secretary makes clear that the administration sees worker classification issues as a high priority. The only question will be how far the administration will go in duplicating California’s AB5 standard, which severely restricted independent contractor classification.
Office of Federal Contract Compliance Programs’ (OFCCP) Direction Remains Measured. The first 100 days of the OFCCP has not revealed any major new directions. The agency’s first priority, dispatching Trump’s widely panned effort to ban diversity training, was easily achieved through presidential action. Moreover, the agency has signaled that it will continue to move toward an effort for federal contractors to certify compliance with their affirmative action requirements.
It is expected that OFCCP will likely push racial equity initiatives geared towards diving deeper into alleged compensation disparities. Jenny Yang, director of the OFCCP, and the former Equal Employment Opportunity Commission chair, has focused on hiring in the past and we expect the OFCCP to dive into legal issues regarding the use of artificial intelligence in hiring decisions.
All Quiet on the Fair Pay and Safe Workplaces Front. Biden’s campaign indicated that resurrecting this Obama initiative would be a significant priority. Obama’s 2014 executive order required federal contractors and subcontractors to report their labor law violations and undergo a “responsible contractor” determination process. If found “non-responsible,” contractors were at risk of not being awarded contracts or losing existing contracts. Unions remain very focused on pushing this priority, and DOL Secretary Walsh may attempt to move in this direction sooner than expected.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Chris Wilkinson is a senior counsel at Perkins Coie in Washington, D.C., in the firm’s Labor and Employment Practice group. He formerly served as associate solicitor for civil rights at the Department of Labor.