Whenever there is a change in the White House, it is common for the new President to implement policies that modify how the federal government addresses employment-related matters. This is particularly true when the new President has a different political affiliation than the prior President. Thus, it is not surprising that in the last couple of months President Biden, and his appointees, have announced significant changes that will impact federal and private sector employers. Some of the most recent announcements include the following:
- In July, President Biden issued an Executive Order on Promoting Competition in the American Economy. Among the statements in the Order is the following directive: To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC [Federal Trade Commission] is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.
- Earlier this month, President Biden issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. The Order generally provided that all new federal contracts and “contract-like instruments” (as well as extensions, renewals, and the exercise of options in existing federal contracts) must include clauses obligating the contractor and any subcontractors to comply with all applicable guidance for their workplace to be subsequently published by the Safer Federal Workforce Task Force (the “Task Force Guidance”). On September 24, The Task Force Guidance was issued, and it includes a vaccine mandate and other workplace safety measures for any “prime contractor or subcontractor at any tier who is a party to a covered contract.” Federal agencies must incorporate the requirements when exercising options and extensions beginning on October 15 and for any new contract executed after November 13.
- In addition to the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, President Biden announced that he was directing the Department of Labor’s Occupational Safety and Health Administration (OSHA) to prepare rules covering all employers with at least 100 employees. Pursuant to that directive, OSHA is crafting rules that will obligate businesses employing 100 or more workers to ensure their workforce is either fully vaccinated or require that any unvaccinated workers produce a negative COVID-19 test result on at least a weekly basis.
- The recently appointed National Labor Relations Board (NLRB) General Counsel has issued memorandums indicating that the NLRB should “utilize every possible tool we have to ensure that those wronged by unlawful conduct obtain true justice.” For example, “in cases involving unlawful firings, Regions should seek compensation for consequential damages, front pay, and liquidated backpay” and “where unlawful firings of undocumented workers are implicated, Regions should seek compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.” In addition, even if the employer is willing to settle any such claims, Regions are advised “to seek no less than 100% of the backpay and benefits owed and all compensation for any consequential damages, as well as front pay if an employee voluntarily waives reinstatement.”
- A new final rule permits the U.S. Department of Labor (DOL) to assess civil penalties against businesses who retain any tips earned by their employees, regardless of whether the practice was willful or repeated. The new rule also modifies the DOL’s regulations addressing when a violation is willful and the corresponding penalties.
In light of the many changes that have been announced and those to come, it will be vitally important that all employers stay updated on new developments in the area of employment law.
If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or (608) 257-2281 or your Stroud attorney.
DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.
