Winds of Change Blow for WAP • EO on Diversity and Inclusion Training RESCINDED • Personnel Policy Update

Winds of Change Blow for WAP

Change is in the forecast for Community Action Agencies (CAAs) that participate in the Weatherization Assistance Program (WAP). The Consolidated Appropriations Act, 2021 (the “Act”), signed into law on December 27, 2020, included the Energy Act of 2020, which reauthorized WAP through FY2025. The reauthorization included funding for the program at $330 million for FY2021, and $350 million for each fiscal year from FY2022 through FY2025. In addition, it included multiple changes that will impact elements of program administration and eligibility moving forward.

EO on Diversity and Inclusion Training RESCINDED

On January 20, 2021, President Biden officially revoked the previous administration's Executive Order 13950, which prohibited federal contractors from conducting workplace diversity and inclusion trainings on certain “divisive concepts”. Since most CAAs and organizations in the Community Action network are federal grantees, rather than federal contractors, the restrictions in the prior executive order did not apply. However, President Biden’s Executive Order 13985 eliminates any lingering uncertainty about Executive Order 13950, its future applicability to CAAs, and the ability of organizations to hold diversity and inclusion trainings.

Personnel Policy Update

A recent administrative decision interpreting the National Labor Relations Act (NLRA) could impact how CAAs draft personnel policies governing employees’ social media activity and conduct in the workplace. Under the NLRA, CAAs may not interfere with the rights of their employees to form or join unions; engage in protected, concerted activities to address or improve working conditions; or refrain from engaging in these activities. In its decision, the National Labor Relations Board (NLRB)—the independent federal agency that enforces the NLRA—interpreted these rules in the context of an employer’s handbook and issued a ruling that was not entirely beneficial to the employer. It upheld provisions of an employer’s handbook related to restricting an employee’s social media postings but struck down others deemed as overly broad limitations on an employee’s ability to solicit or distribute materials and conduct personal business on company time.

While some or all of the decision may be overturned once President Biden appoints a new member to the NLRB later this year, it is instructive for employers drafting or updating their handbooks in the interim. This article from the law firm Ballard Spahr addresses the provisions that were struck down, while this article from the law firm Proskauer Rose explains the reasoning behind upholding each challenged portion of the social media policy.

This Legal Update is part of the CARES Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0482-01. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this publication are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.