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Biden’s Labor Landing Team Is Built to Work Around a GOP Senate

Nov. 13, 2020, 6:48 PM

President-elect Joe Biden maximized executive-branch muscle in naming top-level Obama administration labor officials to his transition team, giving him options for advancing his workplace agenda if Republicans maintain Senate supremacy.

His 24-member review team for labor agencies includes a dozen Obama-era senior officials, eight of whom served in the U.S. Labor Department.

They bring extensive collective experience of governing during former President Barack Obama’s second term, when opposition from congressional Republicans—especially after the GOP seized the Senate in the 2014 midterms—prompted DOL and other agencies to emphasize executive orders, regulations, enforcement, and other non-legislative steps to drive policy.

The deep bench allows Biden to immediately install seasoned appointees in temporary senior leadership roles, to begin addressing pandemic-driven priorities without having to wait months to get nominees through the Senate.

“These are people who both have experience from the Obama administration but who also have followed closely the developments at DOL over the last four years,” said Emily Spieler, a Northeastern University employment law professor who served on Obama’s 2008 DOL transition team. “So they can alert incoming appointees to what work can be done quickly—and, if appointed, be ready to get work on the first day.”

This flexibility will enable Biden to execute his goal of having the Occupational Safety and Health Administration implement an emergency temporary standard requiring employers to protect workers from Covid-19. Fast action on an emergency standard likely demands the appointment of an acting OSHA leader “almost right off the bat,” as well as an acting DOL solicitor, said Edward Montgomery, who led DOL’s 2008 transition.

The list of Obama alums on Biden’s squad includes two former deputy labor secretaries—Chris Lu and Seth Harris—former DOL solicitor Patricia Smith, and former DOL Chief of Staff Seema Nanda.

“The deep roots in labor are consistent with President-elect Biden’s long-standing support of the labor movement,” a Biden transition official said in a prepared statement, adding that the team’s “members understand the work required to restore good governance across federal agencies.”

Senate Blockade?

Republicans are poised to retain their Senate majority unless Democrats can outlast two GOP incumbents in a pair of Georgia runoffs in January.

Continued GOP dominance of the Senate would force Biden to shelve many priorities for labor legislation, such as a union-backed bill to overhaul labor law, and pivot to the administrative focus Obama relied on in his final two years in office.

“It is déjà vu all over again—the playbook’s already been printed,” said Roger King, senior labor and employment counsel at HR Policy Association, a trade group representing Fortune 500 companies. “Whether it’s a Seth Harris or a Lu or someone like that, they know the road map well.”

But if Biden’s first-year priorities require reversing Trump administration rules and returning to Obama-era interpretations, then business groups will resume their oft-successful strategy of mounting legal challenges in employer-friendly venues like Texas.

“They’re going to reg up, and the business community is going to lawyer up,” King added.

Moving the needle on regulations, a complicated process that grows thornier when it involves litigation or reversing a prior administration’s stance, is where the Obama veterans will really pay dividends for Biden.

“There is a lot that can be done without Senate involvement regarding both rules and guidance as well as various internal administrative issues,” Spieler said. “Experienced people can get to work pending approval of nominees for the political positions.”

Joint Employment

For instance, Smith and fellow review team member Tanya Goldman, a former Wage and Hour Division adviser, were instrumental in the Obama administration’s interpretive guidance that called for a broad application of joint employment liability under the Fair Labor Standards Act.

The Trump DOL rescinded that guidance and adopted a much narrower joint liability standard, only to see it get shot down by a federal judge in September.

The Trump administration appealed that decision this month. The case will present Biden’s DOL with imminent court deadlines that offer a chance to revisit the agency’s legal position—a prospect Smith has been reviewing in her role as a senior counsel at the National Employment Law Project.

Biden’s Obama alums can prepare the DOL to return to its more worker-friendly Obama-era stance of holding a corporation jointly responsible for a franchisee or contractor’s wage violations, should the president-elect choose to take such a step.

A Republican roadblock in the Senate would put the onus on Biden to advance labor policy through executive actions as well. That could include actions to raise the minimum wage for government-contractor employees to $15 an hour, or to require firms bidding on federal contracts to maintain certain workplace standards—both of which are Biden campaign pledges.

“The Obama administration certainly used the full extent of their executive authority to raise standards for workers in ways that promoted an efficient contracting system,” Karla Walter, senior director of employment policy at the left-leaning think tank Center for American Progress, said. “The president-elect has already signaled that that will be a key part of their transition strategy. I would assume that any sort of transition team would be looking at those issues.”

Experience at NLRB, EEOC

Biden’s transition team has high-level experience at the National Labor Relations Board and the Equal Employment Opportunity Commission, a pair of independent agencies where the new administration will have greater ability to institute policy changes absent legislation.

Jennifer Abruzzo, a former NLRB deputy and acting general counsel with more than two decades of experience at the board, was named to the squad, and could be a contender for an administration post. Democrats, backed by the AFL-CIO, pushed for the White House last year to nominate Abruzzo for the NLRB’s open Democratic seat—a vacancy that still exists.

Abruzzo, now with the Communications Workers of America, is well positioned to lead a campaign to reverse the Trump administration’s pro-management policies at the NLRB.

She is not the only transition member with a labor relations background, however, and the Biden camp added another union lawyer to the mix after the initial review team roster was made public on Tuesday—Dora Chen, associate general counsel at the Service Employees International Union.

At the EEOC, Biden is drawing on the experience of Jenny Yang, who served as chair, vice-chair, and commissioner at the workplace civil rights agency from 2013-2018. Some former Democratic labor officials told Bloomberg Law they consider her a contender to serve as Biden’s labor secretary, given the president-elect’s commitment to building out a diverse Cabinet.

Yang has experience working with current members of the EEOC, including Democratic commissioner Charlotte Burrows, who was confirmed in December 2014.

Notably, Yang and Burrows worked on a sexual harassment guidance document that was proposed in 2017 but has languished since then.

Yang, Goldman, and former Obama White House adviser Jocelyn Frye are part of “a strong bench of folks on this agency review team who know issues of gender inequality and family economic security quite well,” said Vicki Shabo, a senior fellow at the left-leaning think tank New America, where she focuses on gender equity.

Whether Yang or other members of the review team are considered for acting posts on Jan. 20 or Senate-confirmed jobs remains to be seen. It’s all part of what Montgomery called “putting together a jigsaw puzzle.”

“It’s a complicated interaction, but when you’re in a crisis as we are now, the pressure to move, the pressure to act, the pressure to take control becomes more intense,” he said. “You don’t have the luxury of a long protracted time period to get all these things right.”

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com