We Aren’t Calling a Winner, But if Biden Becomes President…

Given the distinct possibility that Joe Biden will become our 46th president on January 20, 2021, we think it is beneficial to look ahead at what the employment law agenda might be for a Biden administration.

Bear in mind, however, that with a divided Congress for at least the next two years, change may come slowly, especially if we see a continued deemphasis on compromise as we have seen in Washington for many years.

Government Contracting

One of the first orders of business may well be the rescission of President Trump’s “Executive Order on Combating Race and Sex Stereotyping” that limits the federal government and its contractors from conducting certain kinds of diversity training.  This restriction certainly seems contrary to the principles espoused in the standard platform of the Democratic party and is unlikely to survive in a new administration.

For more on what that order requires, please see our article entitled Executive Order Bans Training on Privilege and Systemic Bias for Government Contractors

Immigration

Just as President Trump focused so keenly on immigration, a Biden administration probably will also pay particular attention to such matters, if only to undo policies and limitations that President Trump championed.  Therefore, expect a loosening of employment-related visas and more exemptions from visa limits in the STEM (science, technology, engineering, and math) areas.

For a summary of expectations in the area of immigration generally, please see the article entitled Seven Important Changes to Immigration Policy That We Can Expect From a Biden Presidency from the Felhaber Immigration Law Bulletin.

Independent Contractors

As we wrote in Labor Department Proposes New Employer-Friendly Rule on Independent Contractors, the Department of Labor (DOL) just issued a proposed rule revising and simplifying when someone is to be considered an independent contractor.  A Biden administration is expected to withdraw this proposal in the interest of continuing the Obama-era emphasis on increasing the number of workers who should be classified as employees instead of contractors.

Minimum Wage

Joe Biden has previously supported efforts to increase the minimum wage in various states, and his website advocates a $15.00 minimum nationally. With a Republican majority likely in the Senate, however, this could be difficult to achieve. There may also be a move toward increasing the salary threshold for overtime exemption back to the levels proposed at the end of the Obama presidency, although this may be a lower priority since the salary requirement did increase at the beginning of 2020.

Paid Leave

Biden advocates transforming the 12 weeks of job-protected, unpaid leave under the Family and Medical Leave Act (FMLA) to a paid leave concept.  This could be a difficult task, however, with a divided congress.

National Labor Relations Board (NLRB)

This is an area that often poses a dizzying back-and-forth for employers based on the political leanings of the new administration and the members of the National Labor Relations Board (NLRB) whom they appoint.  This is likely to continue as Biden has a very ambitious agenda in this arena and he likely will be able to appoint a majority of the NLRB.

While opposition from a likely majority of Republican senators can be anticipated, Biden is nevertheless expected to seek passage of a bill entitled the “Protecting the Right to Organize (PRO) Act.”  This bill seeks to strengthen labor unions by such means as:

  • banning mandatory “captive audience” meetings with employee groups;
  • overriding state “right to work” laws;
  • requiring binding interest arbitration for disputed contract terms;
  • increased penalties for unfair labor practices; and
  • liability for unfair labor practices for corporate directors and officers.

With a majority of democratic-leaning members, we also are likely to see the NLRB overrule many of the rulings and policies of the last four years, such as shepherding back the “quickie election” procedures that favored the ability of unions to prevail in representation elections.

Occupational Safety

Given that Biden has already formed his new Coronavirus Task Force, it is likely that the pandemic will occupy much of the attention in the early days of a new administration.  Thus, it is expected that the government will get much more actively involved in establishing and enforcing COVID-19 related safety protocols in the workplace.

It is also anticipated that OSHA will again seek detailed electronic reporting of injury and illness information that will then be publicly available online – this initiative was in the works at the end of the Obama administration but was subsequently derailed.

Increases in inspections, and penalties resulting from them, are also likely.

Restrictive Covenants

A bipartisan bill seeking to limit the use and application of noncompete agreements was introduced into the Senate last year and we expect to see more effort placed on passage of this legislation.  In addition, Biden’s website professes the intent to eliminate all but a few non-compete agreements and to end all “non-poaching” arrangements.

Bottom Line

There obviously will be much more to come in the next several months.  We will do our best to stay on top of it for you.