March 2, 2021
Presidential executive orders (EOs) generally lack the power to immediately alter the ways that employers and citizens are required to act. Still, they get the ball rolling towards changes that are likely to be coming, in the form of federal regulations and policies. That is, as long as they can be justified by the laws of the land as enacted by the Congress and signed by the President.
EOs issued by President Biden since he took office give an indication of where the Biden Administration is heading on several issues applicable to employers, including COVID-19, the federal minimum wage, employment discrimination and diversity initiatives.
COVID-19 and the Workplace
On the COVID-19 front, President Biden directed the U.S. Department of Labor (DOL) to issue “revised guidance to employers on workplace safety during the COVID-19 pandemic,” with a deadline of Feb. 4, 2021. By March 15, 2021, the DOL is to issue any needed temporary “emergency standards” for workplace safety, “including with respect to masks in the workplace.”
On a related note, President Biden’s EO on worker safety seeks to unleash the Occupational Safety and Health Administration (OSHA) on employers that punish workers for complaining about pandemic-related safety issues. The EO calls for the “launch of a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest numbers of workers at serious risk or are contrary to anti-retaliation principles.”
President Biden stated that “workers should not have to choose between their livelihoods and their own or their families’ health.” In keeping with that, he issued an EO that directs the Labor Department to “consider clarifying that workers have a federal guaranteed right to refuse employment that will jeopardize their health, and if they do, they will still qualify for unemployment insurance.”
With that in mind, will employers experience an exodus of workers who, at the prospect of unemployment benefits being available, claim they are afraid of contracting COVID-19 at work? The answer depends on several factors. They include: the actual level of risk they experience, and the difference between their wage levels and the relative generosity of unemployment benefits in their state.
$15 Hourly Minimum Wage?
Speaking of wages, one of the recent EOs gives a nod to the idea of raising the federal minimum hourly wage from today’s $7.25 level to $15. It pushes the federal government in the direction of a $15 hourly minimum wage for federal employees, as well as requiring companies it does business with to pay the same.
In many states, of course, the minimum wage has long exceeded the federal minimum. Several states have enacted laws setting the hourly minimum wage at a $15 rate, to be phased in over several years. For example, Florida joined New York (though only the downstate region), California, Maryland, Massachusetts, New Jersey, Illinois and Connecticut in the group of states that have committed to reaching a $15 hourly minimum over the next few years. Some high-cost large cities already have hourly minimum wage requirements of $15 (such as Washington D.C., San Francisco and New York). Others, including Seattle and San Jose, already exceed $15.
Another Biden Administration priority reflected in recent EOs: curbing discrimination based on gender identity (that is, a transgender person) or sexual orientation. This is distinct from simple discrimination based on gender.
“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” The EO directs federal agencies to review all the regulations they have issued related to civil rights issues and change any that may be inconsistent with the EO’s stance on this issue.
Federal agencies are also directed to determine whether new regulations or other actions are needed to further combat discrimination based on gender identity and sexual orientation.
Targeting “Underserved Communities”
One of the EOs issued on President Biden’s first day in office deals with “advancing racial equity and support for underserved communities.” The aim of this EO (#13985) is to look beyond evidence of discrimination based on a single action or policy.
“Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, [federal agencies] must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity,” the EO states.
The order is broad in scope and primarily seeking ways the federal government can focus greater attention and resources towards improving the fortunes of “underserved communities.” In the EO, those are defined as “populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate” in society in a manner that reflects “equity.” Economic opportunities in rural areas are included within the EO’s scope.
One concrete outcome of EO #13985 was the revocation of an earlier EO (#13950) issued by President Trump that would have affected the way some diversity trainings are conducted for federal agencies, federal contractors and federal grant recipients. The Trump EO created some disruption in the world of diversity training.
The Trump EO, “prohibited federal contractors and subcontractors from providing certain workplace diversity training and programs,” according to the DOL. Specifically, federal contractors and subcontractors were required to include in their contracts that they wouldn’t use “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”
Race or sex stereotyping in the revoked Trump EO was defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” Race or sex scapegoating was defined as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”
The actual effects of the executive actions we’ve seen since Inauguration day are often not yet determinable. In the weeks and months to come, the concrete fallout from the Biden Administration’s EOs — as well as any subsequent legislation and regulations — will come into sharper focus.