Complying With New Federal Pregnant Workers Fairness Act, PUMP for Nursing Mothers Act

The new Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP For Nursing Mothers Act) were adopted when President Joe Biden signed the Consolidated Appropriations Act, 2023 on Dec. 29, 2022.

PWFA: Pregnancy Finally Given Disability-Like Protection

The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.

Like the Americans with Disabilities Act (ADA), the PWFA includes the obligation to provide reasonable accommodations so long as they do not impose an undue hardship. Many courts have determined that pregnancy alone was not a disability entitled to accommodation under the ADA. Under the PWFA, employers will be required to provide reasonable accommodations to employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth, and related medical conditions.

The PWFA adopts the same meaning of “reasonable accommodation” and “undue hardship” as used in the ADA, including the interactive process that will typically be used to determine an appropriate reasonable accommodation.

The PWFA provides that an employee or their representative can make the employer aware of the employee’s limitations. It also provides that an employer cannot require an employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided. Of course, that does not mean the employee gets the accommodation of their choice. The statute provides a defense to damages for employers that, in good faith, work with employees to identify alternative accommodations that are equally effective and do not cause an undue hardship.

Practical Advice for PWFA Compliance

  1. Employers do not have to have a policy for every rule or practice that applies in the workplace. However, if an employer has a reasonable accommodations policy, that policy should be reviewed and updated, as necessary.
  2. Human resources professionals are not the only ones who need training. If managers are not trained as well, they may unwittingly say something in response to an employee’s question that is inconsistent with your policies and practices.
  3. Create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process should be similar to the ADA process, including requesting supporting documentation from the treating healthcare provider. Have employees in states or cities that have adopted versions of the pregnant workers fairness law or other similar laws that are more generous than the federal PWFA? The federal PWFA does not preempt more generous state and local laws. Therefore, any policy, practice, or form may need to be modified depending on where employees are located. As an example, some city and state laws, except in specific circumstances, prohibit employers from requesting medical documentation to confirm an employee’s pregnancy, childbirth, or related medical conditions as part of the accommodation process.
  4. Like under the ADA, when an employee requests an accommodation under the PWFA, Human resources professionals should think about how to make this work, not this will never work. This simple shift in approach makes finding a reasonable accommodation that does not impose an undue hardship on operations more likely.

PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act expands existing employer obligations under the Fair Labor Standards Act (FLSA) to provide an employee with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth. The employer obligation to provide a place to express milk shielded from view and intrusion from coworkers and the public (other than a bathroom) continues.

Except for changes to available remedies, the amendment to the FLSA took effect on December 29, 2022. The changes to remedies will take effect on April 28, 2023.

What Changed Under PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act covers all employees, not just non-exempt workers. The break time may be unpaid unless otherwise required by federal or state law or municipal ordinance. Employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their full weekly salary as required by federal, state, and local law, regardless of whether they take breaks to express breast milk.

With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a 10-day cure period before filing a suit.

Employers with fewer than 50 employees can still rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense. Crewmembers of air carriers are exempted from the law. Rail carriers and motorcoach services operators are covered by the law, but there are exceptions and delayed effective dates for certain employees. No similar exemption is provided for other transportation industry employers.

Practical Advice for PUMP for Nursing Mothers Act Compliance

  1. Educate the HR team and front-line managers on the update to the law and refresh them on the process for providing break time and private spaces to express breast milk.
  2. Like the PWFA, the law does not preempt state law or municipal ordinances that provide greater protection than provided by the PUMP for Nursing Mothers Act. Depending on where employees are located, policies, practices, and the private space provided to express breast milk may need to be modified.
  3. Creativity is the key to being able to come up with staffing solutions and private spaces for nursing mothers to express breast milk. Nothing in the law requires employers to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing breast milk and made available when needed by a nursing mother is sufficient if the space is shielded from view and free from intrusion from coworkers and the public. In other words, allowing an employee to use an office with a door that locks would be convenient, but not practical for many worksites. Depending on the workplace settings, privacy screens, curtains, signage, portable pumping stations, and partnerships with other employers to provide private spaces for nursing mothers are all possibilities.

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Jackson Lewis P.C. © 2023

Federal Agencies Announce Investments and Resources to Advance National Biotechnology and Biomanufacturing Initiative

As reported in our September 13, 2022, blog item, on September 12, 2022, President Joseph Biden signed an Executive Order (EO) creating a National Biotechnology and Biomanufacturing Initiative “that will ensure we can make in the United States all that we invent in the United States.” The White House hosted a Summit on Biotechnology and Biomanufacturing on September 14, 2022. According to the White House fact sheet on the summit, federal departments and agencies, with funding of more than $2 billion, will take the following actions:

  • Leverage biotechnology for strengthened supply chains: The Department of Health and Human Services (DHHS) will invest $40 million to expand the role of biomanufacturing for active pharmaceutical ingredients (API), antibiotics, and the key starting materials needed to produce essential medications and respond to pandemics. The Department of Defense (DOD) is launching the Tri-Service Biotechnology for a Resilient Supply Chain program with a more than $270 million investment over five years to turn research into products more quickly and to support the advanced development of biobased materials for defense supply chains, such as fuels, fire-resistant composites, polymers and resins, and protective materials. Through the Sustainable Aviation Fuel Grand Challenge, the Department of Energy (DOE) will work with the Department of Transportation and the U.S. Department of Agriculture (USDA) to leverage the estimated one billion tons of sustainable biomass and waste resources in the United States to provide domestic supply chains for fuels, chemicals, and materials.
  • Expand domestic biomanufacturing: DOD will invest $1 billion in bioindustrial domestic manufacturing infrastructure over five years to catalyze the establishment of the domestic bioindustrial manufacturing base that is accessible to U.S. innovators. According to the fact sheet, this support will provide incentives for private- and public-sector partners to expand manufacturing capacity for products important to both commercial and defense supply chains, such as critical chemicals.
  • Foster innovation across the United States: The National Science Foundation (NSF) recently announced a competition to fund Regional Innovation Engines that will support key areas of national interest and economic promise, including biotechnology and biomanufacturing topics such as manufacturing life-saving medicines, reducing waste, and mitigating climate change. In May 2022, USDA announced $32 million for wood innovation and community wood grants, leveraging an additional $93 million in partner funds to develop new wood products and enable effective use of U.S. forest resources. DOE also plans to announce new awards of approximately $178 million to advance innovative research efforts in biotechnology, bioproducts, and biomaterials. In addition, the U.S. Economic Development Administration’s $1 billion Build Back Better Regional Challenge will invest more than $200 million to strengthen America’s bioeconomy by advancing regional biotechnology and biomanufacturing programs.
  • Bring bioproducts to market: DOE will provide up to $100 million for research and development (R&D) for conversion of biomass to fuels and chemicals, including R&D for improved production and recycling of biobased plastics. DOE will also double efforts, adding an additional $60 million, to de-risk the scale-up of biotechnology and biomanufacturing that will lead to commercialization of biorefineries that produce renewable chemicals and fuels that significantly reduce greenhouse gas emissions from transportation, industry, and agriculture. The new $10 million Bioproduct Pilot Program will support scale-up activities and studies on the benefits of biobased products. Manufacturing USA institutes BioFabUSA and BioMADE (launched by DOD) and the National Institute for Innovation in Manufacturing Biopharmaceuticals (NIIMBL) (launched by the Department of Commerce (DOC)) will expand their industry partnerships to enable commercialization across regenerative medicine, industrial biomanufacturing, and biopharmaceuticals.
  • Train the next generation of biotechnologists: The National Institutes of Health (NIH) is expanding the Innovation Corps (I-Corps™), a biotech entrepreneurship bootcamp. NIIMBL will continue to offer a summer immersion program, the NIIMBL eXperience, in partnership with the National Society for Black Engineers, which connects underrepresented students with biopharmaceutical companies, and support pathways to careers in biotechnology. In March 2022, USDA announced $68 million through the Agriculture and Food Research Initiative to train the next generation of research and education professionals.
  • Drive regulatory innovation to increase access to products of biotechnology: The Food and Drug Administration (FDA) is spearheading efforts to support advanced manufacturing through regulatory science, technical guidance, and increased engagement with industry seeking to leverage these emerging technologies. For agricultural biotechnologies, USDA is building new regulatory processes to promote safe innovation in agriculture and alternative foods, allowing USDA to review more diverse products.
  • Advance measurements and standards for the bioeconomy: DOC plans to invest an additional $14 million next year at the National Institute of Standards and Technology for biotechnology research programs to develop measurement technologies, standards, and data for the U.S. bioeconomy.
  • Reduce risk through investing in biosecurity innovations: DOE’s National Nuclear Security Administration plans to initiate a new $20 million bioassurance program that will advance U.S. capabilities to anticipate, assess, detect, and mitigate biotechnology and biomanufacturing risks, and will integrate biosecurity into biotechnology development.
  • Facilitate data sharing to advance the bioeconomy: Through the Cancer Moonshot, NIH is expanding the Cancer Research Data Ecosystem, a national data infrastructure that encourages data sharing to support cancer care for individual patients and enables discovery of new treatments. USDA is working with NIH to ensure that data on persistent poverty can be integrated with cancer surveillance. NSF recently announced a competition for a new $20 million biosciences data center to increase our understanding of living systems at small scales, which will produce new biotechnology designs to make products in agriculture, medicine and health, and materials.

A recording of the White House summit is available online.

©2022 Bergeson & Campbell, P.C.

The Intersection of the Bipartisan Infrastructure Law and Davis-Bacon Act Requirements for Federal Contractors and Subcontractors

On November 15, 2021, President Joe Biden signed the $1.2 trillion Infrastructure Investment and Jobs Act into law, which is popularly known as the Bipartisan Infrastructure Law (“BIL”).

The BIL is estimated to create an additional 800,000 jobs.  The United States Department of Labor (“DOL”) contends that such new jobs will “expand the middle class, revitalize our nation’s transportation, communications and utility systems and build a more resilient, reliable, and environmentally sound future.”  The White House asserts that the BIL will provide protection to “critical labor standards on construction projects,” as a substantial portion of the construction projects included in the BIL will be subject to requirements of the Davis-Bacon Act (“DBA” or the “Act”).

While the BIL provides new revenue sources and opportunities for construction projects, federal contractors and subcontractors should ensure that their businesses comply with the DBA’s prevailing wage rates and labor standards requirements.

Scope and Coverage of DBA

In its simplest form, the DBA, enacted in 1931, requires federal contractors and subcontractors to pay prevailing wage rates and fringe benefits to certain construction workers employed on certain federal contracts.  The DOL’s Wage and Hour Division (“WHD”) administers and enforces the Act’s requirements on federally funded and assisted construction projects.  The DBA applies to contracts:

  1. Which the Federal Government or the District of Columbia is a party;

  2. For the construction, alteration, or repair, such as painting and decorating, of public buildings and public works to which the Federal Government or the District of Columbia is a party;

  3. Involving the employment of mechanics, laborers, and other workers that engage in manual or physical labor (except for individuals performing administrative, clerical, professional, or management work such as superintendents, project managers, engineers, or office staff); and

  4. Which are in excess of $2,000.

With respect to the DBA applying to federal contracts above $2,000, this value threshold only applies to the initial federal contract.  If the threshold is met, however, then the DBA applies to any lower-tier subcontracts even if the value of the subcontract is less than $2,000.

Requirements for Contractors and Subcontractors

There are various requirements for federal contractors and subcontractors under the DBA, which the United States Supreme Court has described as “a minimum wage law designed for the benefit of construction workers.”  The Act was designed to protect construction workers’ wage standards from federal contractors who may base their contract bids on wage rates that are lower than the local wage level.  Under the DBA, federal contractors and subcontractors are required, among other things, to do the following:

  1. Pay covered workers who work on the work site the prevailing wage rates and fringe benefits that are listed in the applicable wage determinations, which are provided by the WHD (the prevailing wage rate consists of both the basic hourly rate of pay and any fringe benefits to bona fide third-party plans, which may include medical insurance; life and disability insurance; pensions on retirement or death; compensation for injuries or illness resulting from occupational activity; or other bona fide fringe benefits – bona fide fringe benefits, however, do not include payments made by employer contractors or subcontractors that are required by other federal, state, or local laws such as required contributions to unemployment insurance);

  2. Maintain accurate payroll records for employees that must be submitted to the contracting agency on a weekly basis (within seven days following the regular pay date for the particular workweek), which must include the following for covered employees: (i) name; (ii) classification; (iii) daily and weekly hours worked; and (iv) deductions made and actual wages paid (there are additional recordkeeping requirements for federal contractors who employ apprentices or trainees under approved DOL programs);

    • Federal contractors and subcontractors are also required to preserve the payroll records for three years following the completion of the covered work, provide accessibility to the records upon request by the DOL or its representatives, and allow the DOL or its representatives to interview employees during work hours.

    • Federal contractors and subcontractors can use the WHD’s Form WH-347 to satisfy the weekly reporting requirements.

  3. With respect to prime or general contractors, they must ensure that specific contract clauses and the applicable wage determinations are inserted into any lower-tier subcontracts (the contract clauses cover the following: (i) construction wage rate requirements; (ii) withholding of funds; (iii) payrolls and basic records; (iv) apprentices and trainees; (v) compliance with requirements under the Copeland Act; (vi) requirements for subcontracts; (vii) contract termination – debarment; (viii) compliance with construction wage rate requirements and related regulations; (ix) disputes concerning labor standards; and (x) certification of eligibility); and

  4. Post a notice of the prevailing wages as to every classification of worker and an “Employee Rights under the DBA” poster in a prominent location that is easily accessible to the covered workers at the work site.

Practical Consideration in Compliance with DBA

Federal contractors and subcontractors should ensure that covered workers are properly classified for the work such individuals perform and paid in accordance with the prevailing wage rate for their classification.

Employers will often face recordkeeping challenges when they have nonexempt employees who perform covered (manual) work and non-covered (administrative) work in the same workweek.

In such instances, the employer must determine whether the employee is salaried or paid hourly.  If the employee is salaried, the employer must determine whether the employee’s salary is greater than or equal to the prevailing wage rate for the employee’s classification.  If not, the employer contractor is required to increase the employee’s pay for the week the covered work is performed.

Likewise, if the employee is paid hourly, then the employer must ensure the employee’s hourly rate is greater than or equal to the prevailing wage rate for the employee’s classification.

Federal contractors and subcontractors could face various consequences due to their failure to comply with the DBA, ranging from termination of the federal contract and debarment to a contracting agency withholding money due to the contractor to cover back wages due to employees as well as criminal prosecution.  Accordingly, federal contractors and subcontractors should consult with legal counsel to ensure they comply with the various DBA requirements for any covered contracts.

© 2022 Ward and Smith, P.A.. All Rights Reserved.

Biden Administration Issues New Government-Wide Anti-Corruption Strategy

On Dec. 7, 2021, the White House published a government-wide policy document entitled “United States Strategy on Countering Corruption” (“Strategy”). The Strategy implements President Biden’s National Security Memorandum from earlier in 2021, which declared international corruption a threat to U.S. national security.

The Strategy is notable for several reasons:

First, the Strategy focuses not just on the “supply side” of foreign bribery and corruption—that is, companies acting in violation of the Foreign Corrupt Practices Act (FCPA)—but also on the “demand side” of the equation, namely corrupt foreign officials and those who assist them. It promises to pair vigorous enforcement of the FCPA with efforts to hold corrupt leaders themselves accountable, via U.S. money laundering laws, economic sanctions, and visa restrictions.

Second, the Strategy specifically calls out the role of illicit finance in facilitating and perpetuating foreign corruption, promising “aggressive enforcement” against those who facilitate the laundering of corrupt proceeds through the U.S. economy. Professional gatekeepers such as lawyers, accountants, and trust and company service providers are specifically identified as targets of future scrutiny. The Strategy also promises to institute legislative and regulatory changes to address anti-money laundering (AML) vulnerabilities in the U.S. financial system. These promised changes include:

  • Finalizing beneficial ownership regulations, and building a national database of beneficial owners, as mandated by the Anti-Money Laundering Act of 2020.

  • Promulgating regulations designed to reveal when real estate is used to hide ill-gotten gains. Contemporaneously with the White House’s issuance of the Strategy, the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued an Advance Notice of Proposed Rulemaking (ANPRM), inviting public comment on its plan to apply additional scrutiny to all-cash real estate transactions.

  • Prescribing minimum reporting standards for investment advisors and other types of equity funds, which are currently not subject to same AML program requirements as other financial institutions.

Third, the Strategy calls for a coordinated, government-wide response to corruption, and it contemplates a role not only for law enforcement and regulatory agencies but also for agencies such as the Department of State and Department of Commerce, which is to establish its own new anti-corruption task force. It remains to be seen if the increased scope of anti-corruption efforts called for by the Strategy will result in new or additional penalties for persons and entities perceived as corrupt or as facilitating corruption, but the Strategy may place an additional premium on corporate anti-corruption compliance.

Individuals and entities operating in sectors traditionally associated with corruption and/or AML risk should consider taking the following steps in response to the Strategy. These considerations apply not only to U.S. persons and businesses but also to anyone who may fall within the broad purview of the FCPA, U.S. money laundering statutes, and other laws with extraterritorial reach:

  • Increase due diligence for any pending or future transactions in jurisdictions where potentially corrupt actors or their designees play a role in awarding government contracts. Ensure any payments are the result of arms-length transactions based on legitimate financial arrangements.

  • Professional gatekeepers should become familiar with the particular risks associated with the industries in which they operate. While AMLA made it clear that lawyers, accountants, and real estate professionals will come under increased scrutiny based on the risk profile of their clients, the Strategy increases the likelihood that law enforcement will devote additional resources in this sometimes-overlooked area.

  • Given the increased role the State Department will continue to play in the anticorruption space based on the National Defense Authorization Act and the Strategy, companies doing business in or with countries vital to U.S. foreign policy goals should remember that in addition to the individual leaders of these countries, government institutions and lower-level officials could create risk and will be closely watched. Though the U.S. government often talks about specific government officials, the Strategy appears to take a broader approach.

  • Businesses should continue to examine and reexamine third-party risk with an emphasis on preventing potential problems before they occur. Additional resources and increased cooperation between and among government agencies may lead to additional investigations and enforcement actions, so compliance programs should be updated where necessary.

Article By Kyle R. Freeny and Benjamin G. Greenberg of Greenberg Traurig, LLP

For more white collar crime and consumer rights legal news, click here to visit the National Law Review.

©2021 Greenberg Traurig, LLP. All rights reserved.

Transition 2020 | Defense and National Security Policy Under the Incoming Biden Administration

Both major change and desired continuity can be expected. 

Beginning with perhaps the most historically significant change we expect to see in President-elect Biden’s defense and national security organizations, we believe that the Nation will see the first female serving as the Secretary of Defense. Given the number of highly-qualified women who are on the short-list of nominees, with former Obama-era Undersecretary of Defense for Policy Michele Flournoy, former Secretary of the Air Force Deborah Lee James, former National Security Advisor Susan Rice and U.S. Senator Tammy Duckworth (D-WA) reportedly on that list, the probablity is significant that the Biden Administration will bring us the first woman serving in that cabinet post.

As to the defense budget, after three years of increasing Pentagon budgets but despite the exploding federal debt and deficit resulting from the need to manage the COVID-19 pandemic, we do not expect a significant change in overall defense spending under President-elect Biden in the short term. The incoming Biden Administration has essentially stipulated that geopolitical threats have become more challenging or uncertain so as to make major cuts in the near term unwise.  Just over the last few weeks, North Korea has reportedly made headway in developing its submarine-launched strategic nuclear ballistic missile capability.  And, after Washington asked China to close its consulate in Houston and Beijing retaliated by shuttering the US consulate in Chengdu, China continues to take an aggressive territorial posture in the South China Sea.  Cutting defense will be even tougher if the Senate remains in the hands of the Republicans and with the reduced Democratic majority in the House.

Over the intermediate to long term, however, we expect that the pressure the progressive wing of the Democratic Party will bring to bear to reduce defense spending, will be considerable.  Interestingly, this could be a replay of the post-end of the Soviet Union period in the early 1990s, when Progressive Democrats and Republican deficit hawks aligned to pursue the so-called Peace Dividend.  While the geopolitics of this moment are vastly different, the swollen deficit as the result of emergency pandemic spending could once again align political opponents.

Nonetheless, we expect a Biden Pentagon to take a hard, realistic look at extracting savings and efficiencies from how the Department of Defense does business.  This is particularly likely if former Obama-era Deputy Chief Management Officer Peter Levine, who also performed the duties of the Undersecretary of Defense for Personnel and Readiness, serves in a position of responsibility. Everything from the Department’s back-office operations to its major weapon systems programs will be on the table. Under such a review, both retiring legacy systems in favor of new technology solutions, and cancelling acquisition programs still in early development and without a congressional constituency or those that do not help the U.S. prepare for great power competition with Russia and China, would be fair game.  Interestingly, the desire to look at legacy systems in this context—a not uncontroversial proposition—was originally identified by the House Armed Services Committee’s bipartisan Future of Defense Task Force 2020. This appears to suggest that, triangulating with a Biden national security apparatus, the defense and national security policy center of gravity on the Hill may shift discernably to that Committee under Chairman Adam Smith, from the Senate.

Furthermore, we believe that defense acquisition and contracting management in a Biden Pentagon, will continue to support commercial procurement policy and regulations, especially those that engender access and cooperation with the national security innovation base.  Especially if Obama-era acquisitions chief Frank Kendall; former Undersecretary of Defense for Personnel and Readiness Alan Esteves; or Pentagon senior executive (and current CSIS director) Andrew Hunter, are appointed to relevant positions of responsibility, we expect that the Biden Administration will continue seeing as a priority expanding the Pentagon’s access to technologies being developed by commercial and non-traditional defense companies, which do not depend on the Department’s cost-plus research and development funding for their leap-ahead advancements.

In one area, there is certainty of discontinuity—a Biden Administration will cease major defense funding for the completion of Trump’s border wall. While congressional Democrats might be open to approving modest funding for the repair and upkeep of border walls and fencing, they will likely insist (and President-elect Biden will likely agree) to end funding for the hundreds of additional miles of wall that Trump made a top issue during his 2016 campaign and throughout his presidency.

Over the last few weeks, President Trump has clearly leaned-in in trying to score some foreign policy wins, particularly regarding troop deployments and treaty negotiations, in the run-up to Election Day. This highlights an important distinction in the approach each principal has/will continue to take to defense and national security policy. Biden will take to these issues an articulable worldview, grounded in the National Security Strategy and the analyses that derive from it.  In the execution of that view, we will likely see the restored use of traditional diplomatic tradecraft.  This will be especially true if we see others (including some Republicans) mentioned for relevant senior positions of responsibility in a Biden Pentagon, State Department or National Security Council, including former Deputy Secretary of State Anthony Blinken; Ambassador Nicholas Burns; Clinton-era Secretary of the Navy Richard Danzig; Kori Schake with the American Enterprise Institute; former Secretary of State Clinton’s Deputy Chief of Staff and National Security Advisor to then-Vice President Biden Jake Sullivan; Obama-era Undersecretary of Defense for Policy Christine Wormuth; former Principal Deputy Undersecretary of Defense for Policy Kathleen Hicks, or Richard Fontaine, CEO of the Center for New American Studies, are in fact appointed. The Administration’s support for, and leveraging of, international institutions and valued alliances will likely make Biden’s national security policy positions (even if one disagrees with them per se) engender comity, stability and predictability—so important to the maintenance of the international political economy.

Against this backdrop, we expect that President-elect Biden will call for an immediate extension of the New START Treaty with Russia, as the current treaty expires about a month after he assumes office. Moreover, given the dearth of analysis supporting Trump’s proposed withdrawal of troops from Germany, we expect that Biden will order a pause of those plans to review their costs and military benefits. Also, depending if the Taliban ceases recent hostilities and meaningfully resume negotiations, Biden may suspend major troop movements out of Afghanistan, as well.

Also, having withdrawn from the Cold War-era Intermediate-Range Nuclear Forces Treaty, the Trump Administration has moved ahead with plans to develop a nuclear variant of its submarine-launched conventional Tomahawk cruise missile as a deterrent to Russia. However, as arms-control advocates have highlighted that nuclear-tipped cruise missiles can be especially destabilizing inasmuch as they cannot be distinguished from their conventional cruise missiles versions, we expect that President-elect Biden will put that program on hold.

Finally, on denuclearization, we expect that President-elect Biden will have the U.S. re-enter the Joint Comprehensive Plan of Action (JCPOA) if Iran returns to compliance and will try negotiating with North Korea. The key difference from President Trump’s approach would be that in seeking to rein in North Korea’s ambitions the Biden Administration will involve other allies and partners, including South Korea, Japan, and China.

On climate change policy as it relates to defense and national security, we expect a significant change in rhetoric between what we have seen from President Trump and can expect from President-elect Biden. We say this because, while Trump has conveyed considerable skepticism about climate change, the Pentagon under his Administration has sought and supported efforts, including funding, needed to address the Department’s “energy and climate resilience” operational requirements.  That trend line will continue under the Biden Administration.  But, we expect that the Biden Administration’s rhetoric on this issue will underscore the need to prepare and protect bases from floods, storms and energy supply disruptions arguably caused by climate change more vividly and cite that risk in support of Biden’s broader policy priority on combating climate change.

By far the most significant area of policy continuity between the two Administrations will be the recognition that, while the US emerged from the Cold War with a substantial military lead over any potential rival, the US has not kept pace with China’s and Russia’s military modernization. The Biden Administration will share the Trump Administration’s understanding of China as the United States’ foremost strategic competitor and the need to prepare for great power competition, as prescribed under the most recent National Defense Strategy. While Russia’s strategic nuclear capability and its continuing efforts to undermine democracy worldwide makes it a more immediate national security threat to the US than China, systemic economic factors, if left uncorrected, will likely have Russia recede as a global power over the long run.  However, as the ODNI has observed, China and Russia are more strategically aligned today than at any other time since the 1950s.

With this in mind, we expect to see the Biden Administration continue pursuing, if not expanding, the whole-of-government approach that the Trump Administration has taken to circumscribing Chinese global dominance and Russian malign activity—particularly in the area of technology and innovation, as advancements in artificial intelligence (AI)/machine learning (ML), biotech, quantum and advanced computing, space tech and cybersecurity, among others, are making traditional battlefields increasingly irrelevant.  Specifically, we expect to continue seeing the combined and enhanced use of various economic instruments of national power, including, trade (sanctions) policy; export controls; post-FIRRMA CFIUS; access to capital (especially to commercial technology startups and technology research institutions); economic development assistance; export financing assistance; policies intended to address supply chain management risk (particularly cybersecurity risk); insourcing initiatives, including domestic content preferences, etc., to address this policy imperative. A review of not only the incoming Administration’s policy papers but also the composition of its landing team make clear that a Biden national security apparatus will share the Trump Administration’s appreciation of the US homeland’s vulnerability to adversaries improving their ability to wage cyberwarfare against civilian infrastructure, financial institutions, and healthcare facilities and the need to prioritize relevant defense capabilities within both the Department of Defense and the private sector.

Another major policy area of continuity will be the Trump Administration’s insourcing initiative, which both Administrations believe will be necessary to support the U.S. manufacturing base in vitally important economic sectors such as microelectronics.  Also continuing, if not strengthening, will be measures that started under President Obama’s Secretary of Defense Dr. Ash Carter, but carried forward in earnest by the current Administration, to support and harvest for military use commercially developed emerging technologies, principally artificial intelligence.

If then-Secretary Carter’s Deputy Secretary of Defense Bob Work serves in a position of responsibility, the possibility that the Biden Administration will be especially aggressive in this area will be high, as Work has served as Vice Chair of the National Security Commission on AI during the Trump Administration. In that capacity, Work has been at the forefront of policy issues regarding AI, calling for the U.S. to set aside one percent of the defense budget (around $7 billion annually) for AI projects and creating a private-public partnership among the Pentagon, academia, and the private sector specifically to compete with China’s civil-military fusion strategy.

Over the law few days, an ad hoc group of progressive lawmakers, non-defense think tanks and anti-war groups have raised concerns about President-elect Biden’s defense and national security landing team over its “nearly unanimous links” to top military contractors and have formally appealed the transition team “to recruit a more diversified group of national security thinkers” and “bring some more progressive voices in.” Over the next few weeks, we will consider carefully how the President-elect and his top advisors respond to those concerns, particularly in terms of populating its defense and national security landing team and its short lists for top defense and national security posts in the new Administration—and the policy implications of such responses.


© Copyright 2020 Squire Patton Boggs (US) LLP
For more articles on the 2020 election, visit the National Law Review Election Law / Legislative News section.

A Biden Board at the NLRB: What to Expect and When

This past Labor Day, President-elect Joe Biden told a group of union supporters that he would be “the strongest labor president you have ever had.” Just how true those words will be hinges on what party controls the Senate after the dust settles on this election season.

As part of his labor goals, Biden has championed the PRO Act, a substantive and drastically pro-union rewrite of the 85-year-old National Labor Relations Act that was passed by the House in early 2020. The PRO Act would codify the ambush election rule and micro-unit policy, neuter employers’ ability to mount counter-campaigns to union organizing attempts, and weaken right-to-work laws that protect employee free choice. The ambitious legislation would also permit the NLRB to issue heavy monetary penalties on employers for violating the NLRA and would more strictly require bargaining after an initial certification of a new union.

The legislation would be destructive to companies, but it seems unlikely to become law in today’s political landscape. Indeed, a less ambitious pro-labor bill, the Employee Free Choice Act, failed to pass a Democrat-controlled Congress in 2009.

But even if the PRO Act does not come to fruition, one thing is clear: there will be changes. Employers have benefitted greatly from the pro-employer NLRB over the past four years. We have seen a flurry of positive changes including wins on issues like joint employersmicro-units, abolishing the ambush election rule, and making it easier for employers to make unilateral changes in the workplace.

When and how change might occur under President-elect Biden will largely depend on when he is able to gain control of the NLRB.

The NLRB is currently composed of three Republican members and one Democrat, with one vacant seat. Assuming President-elect Biden is able to fill the vacant seat, his first opportunity to flip control of the Board in his favor 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 short, we could expect there to be pro-union changes at the NLRB beginning in the fall or winter of 2021. This timeline is similar to the beginning of the Trump administration, when we saw the biggest flurry of pro-employer rulings come in December 2017 after Republicans gained control of the NLRB. Once Biden gains control, we might see a strategy similar to that employed by the Trump and Obama Boards. A mix of precedent-overturning NLRB decisions and rulemaking could be in store for employers.


© 2020 BARNES & THORNBURG LLP
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