NLRB's new direction

With any new President comes new leadership of federal agencies. The report outlines how Biden quickly fired NLRB General Counsel Peter Robb, a Trump appointee, when Robb refused the new administration's request to resign. That move is under litigation, which could cause headaches for the Biden Administration down the road if courts rule against it.

In the meantime, the report noted, the Senate has confirmed a new general counsel, Jennifer A. Abruzzo; in addition, the balance of power on the board shifted from Republican to Democratic. The report said those changes could result in new rules and standards for employee handbooks, independent contracting, unionizing-related communication in the workplace, and confidentiality clauses.

"We predict that over the next three years, the Board may take action to reverse its position in a number of cases decided during the prior administration, but that process takes time—it can be months or even years before an unfair labor practice charge is processed and heard before an administrative law judge, and is ultimately presented to the Board for adjudication," the report said.

A labor-friendly administration

President Biden describes himself as a strongly pro-union president, and the report said the NLRB will be revisiting long-standing policies around unionizing. A recent memo by Abruzzo suggested that bargaining, union elections, right-to-strike rules, and other areas will see a more pro-union approach.

"Employers should not expect the change in priorities to end with this memo, as the general counsel indicates that this list is just a beginning…" the report said. "What is clear, however, is that the next three and a half years (at least) promise to be rocky ones for employers at the NLRB."

The Biden Administration also supports the Protecting the Right to Organize Act of 2021—the "PRO Act." This pro-union bill has passed the House of Representatives, but probably will be stymied in the Senate, due to filibuster rules. The law is seen as a wish-list for pro-labor groups and would overturn "right to work" laws that many states have put in place.

Senate Democrats don't have the votes to pass the PRO Act outright, but parts of the bill may be attached to a reconciliation bill that the Biden Administration is pushing. The report predicts that civil penalty rule changes might be included in the reconciliation bill. The result, the authors write, would "reverse 85 years of precedent and impose civil penalties on employers embroiled in labor disputes that could range from $50,000 to $100,000 per violation. Such an effort would be a dramatic revision of the statute."

A "very active" OSHA

The report was written before the Biden Administration announced new rules on COVID-19 vaccination that will have a national impact, rules to be overseen by the OSHA. But even aside from the new workplace vaccination rules, the WPI analysis predicted OSHA would step up regulatory efforts.

"We expect a very active OSHA in the coming months," the report said. "The primary focus of the agency will continue to be initiatives related to COVID-19. However, employers should anticipate and prepare for an active non-COVID regulatory agenda, as well, and stepped-up enforcement."

Other DOL areas to watch

The report also focused on independent contractors—a big issue in recent years as the "gig economy" has taken off. One of Biden's first moves in this area was to withdraw a Trump Administration rule proposing an "economic reality" test for defining who is a contract worker. The report suggested federal rules could end up closer to California's "ABC test." That rule looks at a workers' independence from an employer's direction, whether they are doing work outside the company's normal activities, and whether the worker does similar work outside that specific contract. The report noted that the PRO Act supports the ABC test.

Other issues mentioned by the report:

• Ending the Trump Administration's attempt to stymie diversity, equity and inclusion training by employers.
• Continuing to develop workplace safety rules in response to the ongoing COVID-19 pandemic.
• Executive action on raising the minimum wage to $15 for federal contractors.
• Revising COVID-19 regulations around immigration, travelers from foreign countries, and student visas.
• Legislative activity in state legislatures, where many have moved ahead to address labor issues at a time when the federal government is often gridlocked.

Read more: 

• New DOL fiduciary rule creating 'regulatory whiplash': attorneys
• NLRB adopts business-friendly independent contractor test
• New OSHA emergency temporary standard could impact health care employer benefit plans