News & Commentary

January 21, 2021

Maxwell Ulin

Maxwell Ulin is a student at Harvard Law School.

Yesterday marked a momentous occasion in the nation’s history, as former Vice President Joe Biden and Senator Kamala Harris were inaugurated president and vice president, respectively. Shortly after their swearing in, President Biden wasted little time carrying out his agenda, issuing 17 executive orders after the inaugural ceremony that included rejoining the Paris Climate Agreement, repealing the Muslim ban, halting student loan interest rates, and strengthening the Deferred Action for Childhood Arrivals (DACA) program. One order re-commits the federal government to non-discrimination on the basis of sexual orientation or gender identity, in compliance with the Supreme Court’s recent interpretation of Title VII of the 1964 Civil Rights Act under last year’s landmark case Bostock v. Clayton Co., 590 U.S. __ (2020).  Another measure aimed at promoting racial equity across government repeals the Trump administration’s ban on racial bias trainings by federal agencies and contractors.  Biden also plans to seek review of Trump’s so-called “do-good” investing rule, published last month, which discourages socially responsible investing by requiring employee retirement plans under ERISA to put financial considerations before all else in their decision-making.  

Today Biden is expected to go still further in expanding workers’ rights by directing the Occupational Safety & Health Administration (OSHA) to issue updated COVID-19 safety guidance for businesses and consider adoption of binding workplace safety rules.  While most labor groups had pushed Biden to order the creation of a nationally enforceable standard, the Biden Administration merely asks OSHA to consider whether such a measure is necessary.

Biden’s staff shake-ups proved even more dramatic. In an e-mail sent within half an hour of his inauguration, the newly minted president demanded the resignation of Peter Robb, General Counsel of the National Labor Relations Board (NLRB), giving Robb until 5:00PM yesterday to step down or face termination. In a rebuke of the new administration, Robb announced that he would not voluntarily resign before the end of his term in August, claiming that doing so would undermine the independence of the General Counsel’s Office from both the White House and the Board. Biden promptly sacked him thereafter.  In addition to Robb, Biden also dismissed two other Trump agency appointees: Kathy Kraninger, Director of the Consumer Financial Protection Bureau (CFPB), and Michael Pack, head of the lesser known U.S. Agency for Global Media.

Firing Robb did not come without its share of controversy. The move marked the first time since 1950 that a President has forced out the NLRB’s top litigator and constitutes the first case of outright termination. In the absence of direct precedent, Biden’s decision relies on last summer’s landmark Supreme Court decision inSeila Law LLC v. CFPB, 591 U.S. ___ (2020), which ruled that the president’s removal authority is unlimited in cases where an appointee constitutes the sole decision-making head of an agency.  In Robb’s case, the General Counsel makes various unilateral policy decisions as chief prosecutor that make the job highly analogous to the CFPB’s directorship.  While some workers’ rights advocates have expressed concern that Robb’s early dismissal might bite them down the road, Biden faced significant pressure from CWA, SEIU, and other major unions who viewed Robb’s leadership as creating a crisis at the agency; as General Counsel, Robb took a number of highly aggressive steps to undermine labor organizations on behalf of businesses, including limiting agency  spending, attempting to consolidate Board officesratcheting up union prosecutions, attacking the validity of neutrality agreement, and even trying to exterminate Scabby the Rat.

Robb’s removal was not the only shake-up at the Board.  Last night, the President officially named Lauren McFerran, the NLRB’s sole Democrat, to replace John Ring as Chairman.  The Board still enjoys a 3-1 Republican majority (the NLRB’s fifth seat, traditionally reserved for Democrats, remains vacant), but that is slated to change when Republican William Emmanuel’s term expires in August.  The administration also announced a series of temporary and permanent staffing decisions across the Department of Labor (DoL).  Among them, the following appointments were announced:

  • Acting SecretaryAl Stewart, current assistant director of operations, will serve in the position until Boston Mayor Marty Walsh’s Senate confirmation.
  • Senior Advisor to the Secretary: Raj Nayak, Deputy Director of the National Employment Law Project (NELP) and a former Obama DoL staffer.
  • Director of Office of Federal Contract Compliance Programs (OFCCP)Jenny Yang, a former Commissioner of the Equal Employment & Opportunity Commission (EEOC) under President Obama with a significant background in combatting the gender pay gap through spearheading the Commission’s pay data collection program.  Some believe that the choice signals Biden’s continued seriousness about combatting pay inequities in federal contracting. 
  • Director of the Office of Labor-Management Standards: Jeffrey Freund.
  • Acting Head of Occupational Safety & Health Administration (OSHA): Jim Frederick, former safety official for the United Steelworkers.
  • Deputy Assistant Secretary for Pandemic & Emergency Response: Joseph Hughes, a former National Institute of Environmental Health Sciences official. A new position at OSHA, the assistant secretary will likely play a major role in shaping binding workplace safety regulations with respect to COVID-19.
  • Chief Economist: Janelle Jones, a former analyst at the union-affiliated Economic Policy Institute (EPI)

See here to view the full list of current appointees and vacancies at DoL.  Once fully staff, new leadership at the Department is expected to set about forging a more pro-worker policy agenda.  Already, ideas are swirling in over how the new administration could combat worker abuse through new policies on legal enforcement and worker misclassification.

On Capitol Hill, the inauguration ushered in an additional transition of power, as Democrat Chuck Schumer of New York became Majority Leader following the swearing in of Senators Jon Ossoff (D-GA), Rafael Warnock (D-GA), and Alex Padilla (D-CA) by the newly minted Vice President, which granted Democrats a de-facto 51-50 Senate majority.  Unified Democratic control of Washington will prove essential to a number of pro-worker legislative priorities that make up Biden’s agenda, including a $15 minimum wage and paid family and sick leave for workers.  It may also determine the fate of comprehensive labor law reform, another Biden platform pledge, as Ben and Sharon discuss in their recent post.  Last week, the AFL-CIO committed to placing the bulk of its legislative muscle behind pushing for passage of the Protect the Right to Organize (PRO) Act, which includes a number of Clean Slate policy ideas for how to promote worker organizing and build on the National Labor Relations Act (see here for a helpful explainer on what it contains).  As a result, it is perhaps unsurprising that Republican Senate Leader Mitch McConnell has sought a firm commitment from Schumer to preserve the minority party’s power to block legislation through the filibuster—an overture Democrats are now poised to reject.

As he moved into the White House yesterday, President Biden also took the step of installing a bust of the late United Farmworkers (UFW) President Cesar Chavez behind the Resolute Desk in the Oval Office.  The bust, appearing in the Oval for the first time, replaces the portrait of President Andrew Jackson hung there by Biden’s predecessor.  Needless to say, the move carries with it tremendous symbolic significant for many labor and immigration advocates.

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