Control of the Senate or Not, Biden Has a Pen: Executive Orders Employers Can Expect Under the New Administration

With the Georgia Senate race and control of the Senate hanging in the balance, a Biden Administration’s ability to enact new employment-related legislation is questionable.  However, with the stroke of a pen, a Biden Administration can make significant changes through Executive Order.  In this post, we attempt to identify several areas where rule by Executive Order may come.

First up, the Fair Pay and Safe Workforces (“FPSW”) initiative (commonly known in the contractor community as the “Blacklisting” Executive Order).  In 2017, President Trump revoked this initiative, which was initially established via Executive Order by the Obama-Biden administration to address concerns arising out of a Senate report and later Government Accountability Office report indicating that “a small number” of federal contractors had significant health and safety and wage and hour violations while continuing to receive federal contracts (see our coverage here).  The FPSW instituted certain reporting requirements for existing contractors, as well as pre-award reporting and approval.  It also severely limited arbitration agreements.  Biden’s campaign stated that he would “restore and build on” the FPSW, including: “ensur[ing] federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns” and “only award[ing] contracts to employers who support their workers, including those who pay a $15 per hour minimum wage and family sustaining benefits.”  The statement seems to indicate that Biden is considering rolling in a version of the “high-road” contracting Executive Order considered by President Obama, which would have favored giving federal contracts to labor-friendly companies that provided certain worker benefits such as a living wage, paid sick leave, health insurance, and retirement benefits.  The Order also would have given weight to considerations of a company’s compliance record with regard to tax and labor laws—similar to a rule change proposed by the Clinton administration but subsequently nixed by the Bush administration.  A restored FPSW would likely face legal challenge as it did previously: the FPSW was enjoined by U.S. District Court Judge Marcia Crone of the Eastern District of Texas, but an appeal of the injunction was dismissed following Trump’s revocation of the FPSW.

Next, Trump’s Executive Order restricting federal contractor diversity training, which was widely criticized by businesses, nonprofit organizations and civil rights groups alike, will likely be on the chopping block.  The Order, which we previously covered here and here, affects contracts entered into starting November 21, 2020 and prohibits federal contractors from conducting training that encompasses “race or sex stereotyping” or “race or sex scapegoating,” including training related to unconscious bias “to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.”  The Order also allows for filing complaints related to objectionable trainings.  The Biden administration, which prioritizes on its transition website its intent to address “systemic racism,” will likely scrap or significantly modify the Order.

Third, Trump issued a religious freedom Executive Order, which lacked real substance, as we discussed here, because it did not mandate any real changes in terms of religious institutions’ speech nor change the status quo with regard to federal contractors’ conscience-based objections to contraceptives (the existing guidelines did not require employers to ensure that their health plans had contraception coverage).  However, the Order expressed hostility toward contraceptive mandates, requiring “The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services [to] consider amending regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.”  Because Biden has publicly expressed supported support for a contraceptive mandate (with “an exemption for houses of worship and an accommodation for nonprofit organizations with religious missions”), it would not be surprising if he chooses to revoke this Order.

Finally, last year, Trump revoked Obama Executive Order 13495, which required that successor federal contractors must, in certain circumstances, offer a right of first refusal of employment to employees who had been employed under the predecessor contract.  Trump’s Order required the Labor Secretary and other executive heads and agencies to “promptly move to rescind any orders, rules, regulations, guidelines, programs, or policies implementing or enforcing” the Obama Executive Order.  Given his focus on protecting unions and workers, it would not be surprising if Biden restores Executive Order 13495.

We will continue to monitor employment developments under the new administration.  Stay tuned for updates.