Biden Time: "Divisive" Training Ok, OSHA "Not Protective," Independent Contractor Regs Paused

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

And that's not all!

"C'mon, man. Don't be a Neanderthal."

Nail in the coffin for Trump Order on "divisive" training. In January, President Biden signed an Executive Order that revoked Trump Executive Order 13950. As Cara Crotty has written, the Trump E.O. prohibited federal contractors from providing employee training that was "divisive" and that "scapegoated" members of one race or sex. The Trump E.O. also required federal contractors to certify that they were not providing such training.

Although the Trump E.O. had already been revoked, this past Tuesday the Biden Administration issued a memorandum that puts the final nail in the coffin of the Trump Order and two memoranda that implemented the Trump Order. The Biden Administration memorandum calls for the "complete rollback of agency actions that were taken pursuant to E.O. 13950."

According to the Biden memorandum, "[F]ederal contractors, including subcontractors and vendors performing under government contracts, shall not be investigated, debarred, or otherwise penalized for purported violations of E.O. 13950."

The memorandum also says that, to the extent that federal contractors entered contracts with these terms during the short time that the Trump Order was in effect, the terms should not be enforced.

And federal agencies are directed to communicate this news to federal contractors whose contracts contained terms complying with E.O. 13950, and to "promote awareness of the rescission of E.O. 13950 to their contracting communities at large."

Office of Inspector General says OSHA is leaving "U.S. workers' safety at increased risk." In a report issued Tuesday, the Office of the Inspector General of the U.S. Department of Labor said that the efforts of the Occupational Safety and Health Administration to prevent COVID transmission in the workplace had left workers without adequate protections. This sets the stage for the new COVID Emergency Temporary Standard that OSHA is expected to issue by March 15. Among other things, the OIG noted that between February and October 2020, OSHA had a 15 percent increase in complaints compared with the corresponding period in 2019 but conducted only half as many inspections. Because the agency's work has been done primarily remotely because of the pandemic, "hazards may go unidentified and unabated longer, with employees being more vulnerable to hazardous risk exposure while working." The OIG recognized that OSHA had issued guidance but that "guidance does not create legal obligations for employers."

Trump independent contractor regs are officially delayed. As Jim Coleman predicted waaaaay back in January, the Biden Administration has issued final regulations that will delay the effective date of the Trump Administration's regulations on independent contractors. The Trump regulations, which were to take effect this Monday, March 8, will now be delayed until May 7. (And forever after, we feel sure.) The delay was proposed on February 5, and Law360 reports that a "minority" of the more than 1,500 commenters favored the delay. Meaning, I presume, that the "majority" did not want the effective date of the Trump regulations to be delayed.

Robb firing will not result in early dismissal of NLRB complaint. A few weeks ago, I reported that an employer had argued that President Biden's firing of the General Counsel of the National Labor Relations Board was ground for early dismissal of an unfair labor practice complaint brought against the employer.

This week, a three-member panel of the NLRB disagreed, and said the legal effect of the allegedly unlawful firing of the General Counsel could be addressed later, along with the merits of the case. Significantly, two members of the three-member panel were Republicans and Trump appointees (John Ring and William Emanuel), voting with Board Chair Lauren McFerran (D).

You may recall that on Inauguration Day 2021, the Administration "asked" NLRB General Counsel Peter Robb, who was appointed by President Trump, to tender his resignation. Mr. Robb's term did not expire until November of this year, so he said no and was promptly fired, along with his Deputy General Counsel.

"Have a great weekend! Is it spring break yet?"

Image Credits: From flickr, Creative Commons license. Caricature of Joe Biden by DonkeyHotey; photo by Gage Skidmore.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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