Since taking office on Jan. 20, the Biden administration has issued several executive orders and other documents in furtherance of policies that are more pro-worker and pro-union than those of the previous administration. 

The Department of Labor also has taken several actions in recent weeks, including having the Occupational Safety and Health Administration issue stronger COVID-19 worker-safety guidance, delaying the revised independent contractor rule for two months pending a review, ending the Payroll Audit Independent Determination program and directing the Wage and Hour Division to withdraw three opinion letters.

Here’s an overview of key changes so far.

Executive Order on Protecting the Federal Workforce 

President Joe Biden issued Executive Order 14003 that states, in part: “It is the policy of the United States to protect, empower, and rebuild the career federal workforce. It is also the policy of the United States to encourage union organizing and collective bargaining.” The executive order revokes an executive order that created a new Schedule F excepted service category, in which federal employees in policymaking positions could be placed and lose most civil service protections. Biden’s executive order directs federal agencies to negotiate over those collective bargaining subjects set forth in federal law while revoking executive orders that directed agencies to renegotiate collective bargaining agreements allowing agencies to unilaterally impose terms, as well as prohibited union stewards from using official time. Under the executive order, the director of the Office of Personnel Management is ordered to develop recommendations to promote a $15-per-hour minimum wage for federal employees. 

Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

Biden issued Executive Order 13988 in January, which states, in part, “It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” The executive order directs agency heads to review existing orders, regulations, guidance documents, policies or programs issued under Title VII that may be inconsistent with administration policy and to consider revising, suspending or rescinding such agency actions or issuing new agency actions.

Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

Biden issued Executive Order 13985 that rescinds Executive Order 13950, issued by former President Donald Trump, that prohibited federal contractors and subcontractors from providing the federal government with certain workplace diversity training and programs. Executive Order 13950 had been the subject of litigation that resulted in the issuance by a federal district court of a nationwide preliminary injunction preventing its implementation. 

OSHA Guidance on COVID-19 Worker Safety 

At the end of January, OSHA issued stronger worker-safety guidance to help employers and workers implement a coronavirus-prevention program and better identify risks which could lead to being exposed to and contracting COVID-19. exposure and contraction. The document, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” provides updated guidance and recommendations and outlines existing safety and health standards. 

Implementing a coronavirus-prevention program is the most effective way to reduce the spread of the virus. According to OSHA, the guidance recommends the following elements in a prevention program:

• Conduct a hazard assessment.
• Identify control measures to limit the spread of the virus.
• Adopt policies for employee absences that do not punish workers so as to encourage potentially infected workers to remain home.
• Ensure that coronavirus policies and procedures are communicated to English-speaking and non-English-speaking workers.
• Implement protections from retaliation for workers who raise coronavirus-related concerns.

The guidance details key measures for limiting spread of the coronavirus, including ensuring infected or potentially infected people are not in the workplace, implementing and following physical-distancing protocols and using surgical masks or cloth face coverings. It also provides guidance on use of personal protective equipment, improving ventilation, personal hygiene and routine cleaning.

This guidance is not a standard or regulation, and it creates no new legal obligations. The recommendations are advisory in nature, contain informational content and are designed to assist employers in recognizing and abating hazards.

Independent Contractor Regulations Frozen 

A memorandum sent to federal agencies froze any new or pending regulations until a review could be conducted. The memorandum will result in the final rule issued on Jan. 7, 2021, by the Department of Labor concerning the classification of independent contractors, which would have been effective on March 8. In follow-up to the memorandum, the department published a notice in the Federal Register, delaying until May 7, the effective date of the Independent Contractor rule. The Wage and Hour Division sought public comments through Feb. 24 on this proposed delay, which would allow it additional opportunity for review and consideration of the new rule.

The revised rule would identify two core factors that are most determinative:

1. The nature and degree of control over the work.
2. The worker’s opportunity for profit or loss based on initiative and/or investment.

The labor agenda announced by Biden when running for president included a commitment to stop employers from intentionally misclassifying employees as independent contractors and a pledge to enact legislation that makes worker misclassification a violation of federal labor, employment and tax laws.

Payroll Audit Independent Determination Program 

At the end of January, the Department of Labor ended the PAID program that the Wage and Hour Division had started in 2018. The PAID program allowed employers to self-report federal minimum wage and overtime violations under the Fair Labor Standards Act. Those employers who chose to participate in the program would avoid litigation, penalties or damages, with employees prohibited from filing private actions based on the violations. In announcing the end of the program, Wage and Hour Division Principal Deputy Administrator Jessica Looman said: “The Payroll Audit Independent Determination program deprived workers of their rights and put employers that play by the rules at a disadvantage.”

Wage and Hour Opinion Letters Withdrawn

The Department of Labor withdrew three Wage and Hour opinion letters that were issued in January by the Trump administration. Opinion letter FLSA2021-4 addressed whether a restaurant may institute a tip pool under the FLSA that includes both servers, for whom the employer takes a tip credit, as well as hosts and hostesses, for whom a tip credit is not taken. Opinion letters FLSA2021-8 and FLSA2021-9 concerned whether different types of workers should be classified as employees or independent contractors. According to the Labor Department, these opinion letters were withdrawn since they “were issued prematurely because they are based on rules that have not gone into effect.”

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at [email protected].