Attorney Blog, Human Resources

Employment Moves Biden Could Make within His First 100 Days: Part 2

Attorney Harrison Oldham

Day by day, we move closer to the initial term for a new President of the United States. While there are many thoughts and opinions about the change, we all know that the change is coming, and with a new President, comes a new administration.  Each presidential administration has the opportunity to have a tremendous impact on the laws of the workplace. With that in mind, last week we looked some of the changes that the new administration could make in its first 100 days. This is the second part of those potential changes.

  1. Revive ‘Right of Refusal’ Order

The Biden administration may look to revive Executive Order 13495, which was issued by the Obama administration.  That Executive Order required most successor service contractors to offer predecessor contractor service employees a right-of-first refusal (job offer) for open positions for which they were qualified.  According to the Obama administration, the need for the Order arose because when a service contract expires, and a follow-on contract is awarded for the same service, at the same location, the successor contractor or its subcontractors often hires the majority of the predecessor’s employees. On some occasions, however, a successor contractor or its subcontractors hires a new work force, thus displacing the predecessor’s employees.  “However, the Federal Government’s procurement interests in economy and efficiency are served when the successor contractor hires the predecessor’s employees.  A carryover work force reduces disruption to the delivery of services during the period of transition between contractors and provides the Federal Government the benefits of an experienced and trained work force.”  As a result, President Obama signed Executive Order 13495, which was called the “Nondisplacement of Qualified Workers Under Service Contracts”.

On October 31, 2019, President Trump issued Executive Order 13897: Improving Federal Contractor Operations by revoking Executive Order 13495: Non-Displacement of Qualified Workers under Service Contracts, revoking the requirements of Order 13495.  Now, it is widely expected that the new administration will invoke a new Executive Order containing the substance of Order 13495, primarily as a result of Mr. Biden’s close relations with unions.

  1. Upend Federal Civil Service Order

The Trump administration issued a directive known as Executive Order 13957.  Order 13957 “instructed agencies to reclassify competitive service employees who serve in ‘confidential, policy-determining, policy-making, or policy-advocating positions and that are not normally subject to change as a result of a Presidential transition’ as members of the newly created Schedule F within the excepted service.” Basically, this Order reclassified many non-political civil service employees to “at-will” status, removing any labor rights and other workplace protections.

The opinion from the current White House on this Order was that it was designed to allow for greater flexibility for the appointment of roles and to hold career Federal employees more accountable for their performance.  However, after the Order was signed, the Chair of Federal Salary Council, who was appointed by President Trump, resigned, and the National Treasury Employees Union, which represents over 150,000 federal workers filed a lawsuit designed to block the implementation of the Order.  In its lawsuit, the NTE Union alleged that the Order would make political loyalty more of a prerequisite rather than merit or skill.  Additionally, commentators have attacked the Order for being “a harmful attack on the integrity of our government”.

It is widely anticipated that Executive Order 13957 will be rescinded or revoked by the new administration.

  1. New Leader atop Labor Board

During his election campaign, President-elect Biden told a group of union supports that he would be “the strongest labor president you have ever had.”  One way for him to hold true on that promise will be to realign the National Labor Relations Board (the “NLRB”) (the National Labor Relations Board is an independent agency of the federal government of the United States with responsibilities for enforcing U.S. labor law in relation to collective bargaining and unfair labor practices).

The NLRB is currently composed of three Republican members and one Democrat, with one vacant seat.  Assuming Mr. Biden is able to fill the vacant seat, his first opportunity to flip control of the Board will come in August 2021, when Trump appointee Bill Emanuel’s seat expires. NLRB General Counsel Peter Robb’s term expires in November 2021.  Even then, control depends on the Senate confirming both the new general counsel and Board member positions.  In any case, it is expected that we will see major changes with the NLRB, and its rulings, over the next 4 years.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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