To say President Biden had a busy first day in office is an understatement. After being sworn in, President Biden wasted no time in issuing a flurry of executive orders. Many of these orders significantly impact employers and employees. Let’s go over some you need to know about now.

Expanded Protections on the Basis of Gender Identity or Sexual Orientation

Last year, the Supreme Court’s decision in Bostock v. Clayton held Title VII protects employees against discrimination because of their sexual orientation and gender identity.

Concluding discrimination on the basis of gender identity or sexual orientation overlaps with other forms of prohibited discrimination, President Biden has ordered that Title VII, and other laws prohibiting discrimination, be interpreted as prohibiting workplace discrimination on the basis of gender identify and sexual orientation.

This order expands on the Bostock decision.

DACA Is Officially Back

The Deferred Action for Childhood Arrivals (“DACA”) deferred removal of certain undocumented immigrants who were brought into the United States as children, had obeyed the law, and had stayed in school or enlisted in the military. Upon the successful completion of a background check, DACA allows eligible individuals to request temporary relief from removal and apply for temporary work permits.

President Biden has directed the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions deemed appropriate, consistent with applicable law to preserve and fortify DACA.”

Masks Are Required in Federal Buildings

As expected, President Biden has taken an aggressive stance at battling the pandemic. In one executive order, entitled “Protecting the Federal Workforce and Requiring Mask-Wearing”, he requires all individuals in federal buildings or on federal lands to wear masks, maintain physical distance, and otherwise adhere to other public health measures, set forth in the CDC guidelines.

“Regulatory Freeze” on All New or Pending Rules

The new administration issued a memorandum demanding:

  • That no new rules be promulgated until department head appointed or designated by the president reviews and approves the rule.
  • Any rules not yet in effect are postponed for 60 days.
  • Reopening a 30-day comment period to allow interested parties to provide comments about “issues of fact, law, and policy raised in those rules.”

As expected, we will likely see some of the more recent employment rules blocked.

But That’s Not All . . .

In addition to the executive orders listed above, the President also made some other changes that will impact employers, and employees, in the long run. Let’s discuss a couple.

Over at the EEOC

In EEOC news, President Biden selected Charlotte Burrows to head the agency. A democrat, Burrows previously held several posts at the U.S. Department of Justice, including a six-year stint as associate deputy attorney general. She also served as Sen. Edward M. Kennedy’s top adviser on civil rights.

Biden also tapped Jocelyn Summers to serve as Burrows’ second-in-command. Summers, also a Democrat, is a former top-ranking civil rights official in the Justice and Health and Human Services departments under the Obama administration. She also previously served as an EEOC attorney and labor counsel for Kennedy, and ran the Williams Institute at the UCLA School of Law, a think tank that conducts research on sexual orientation and gender identity law and public policy.

With these selections, the commission maintains a Republican majority, at least until 2022.

Meanwhile at the NLRB

The biggest drama of the day occurred when President Biden asked the Board’s general counsel, Peter Robb, to tender his resignation. Robb denied the request stating that firing him would be unprecedented and that his ouster would undermine the independence of the counsel’s office. Biden responded to Robb’s refusal by firing him.

As a way of background, the Board’s general counsel wields significant power to shape federal labor policy because they decide which labor disputes to prosecute and craft the legal theories staff attorneys present to the five-member board. During his tenure, Robb had advanced various employer-friendly interpretations of the NLRA. For example, under his tenure, the NLRB expanded employers’ powers to make changes to job terms without any approval from their workers’ unions and narrowed workers’ access to employers’ property and equipment. Notably, this particular act is significant because no president has ever fired the Board’s general counsel.

What Does All This Mean?

Things are changing and fast! While the Trump administration interpreted employment and labor laws in a way that greatly benefited businesses, we are poised to see a shift to an expansion of employee rights and more employee-friendly interpretations passed. Employers need to pay close attention to actions taken by the new administration. Employers should seek legal counsel to the extent they need assistance maneuvering these changes and they should begin updating their policies, handbooks, other materials, and communicate any changes to their workforce.

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

This blog is provided for educational and informational purposes only.  To speak with an attorney, please contact our office at 602.248.1000 or email info@jaburgwilk.com