The Pendulum is Officially Swinging: Biden’s Early Changes and How They May Impact Employers

Obermayer Rebmann Maxwell & Hippel LLP

As HR Legalist predicted, President Biden is taking steps to swing the pendulum in an employee-friendly direction. While implementing substantive changes may take some time in light of the administrative procedures required, President Biden’s actions in his first few hours in office show that meaningful changes are on the way.

In his first few days as Commander-in-Chief, President Biden has taken two particularly notable actions. First, on January 21, 2021, President Biden fired Peter Robb, the former General Counsel for the National Labor Relations Board (NLRB), after Robb declined to resign by close of business on Wednesday. Robb is the first general counsel to be forced out of this position since 1950.  Before his tenure with the NLRB, Robb practiced labor and employment law for management-side law firms.  During his time as the NLRB General Counsel, Robb advanced numerous business-friendly interpretations of the National Labor Relations Act.

Second, President Biden selected Charlotte Burrows to lead the United States Equal Employment Opportunity Commission (EEOC), and chose Jocelyn Samuel to serve as second-in-command.  Both Burrows and Samuels are Democratic-party members.

While the President’s recent actions underscore his Administration’s commitment to implementing employee-friendly regulations, these personnel changes and nominations at the administrative level may not lead to immediate substantive, regulatory changes. Specifically, the EEOC’s composition will remain predominantly Republican until at least 2022, when former-Chair, now-Commissioner, Janet Dhillon’s term expires. This may prove problematic for the EEOC’s ability to implement the Biden Administration’s agenda, as the EEOC acts through rulemaking, and a majority of the Commissioners must approve all final regulations. Moreover, the EEOC requires funding from Congress to conduct its investigations, which is disbursed to agencies only after the budget and appropriations process is completed.

Additionally, the NLRB functions much like a court to the extent that its rules are expressed and interpreted through opinions. Thus, while President Biden has the opportunity to mold the NLRB in his own image—and has already taken steps to do so by firing Robb—substantive changes to the labor field are likely to arise more slowly, as any changes must present themselves to the NLRB through litigation or by way of rulemaking. 

As HR Legalist has previously observed, the changes President Biden is expected to make will tilt the scale in an employee-friendly direction. The composition of employment-related agencies is rapidly changing, and HR Legalist will continue to monitor these changes and report them accordingly. In the interim, employers should be cognizant that President Biden’s recent actions signal that Obama-era rules and precedents may return, which may require changes to employee handbooks and employer operations, and may result in higher exposure to liability. 

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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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