Today is the day that Joe Biden becomes our 46th president. As Biden is being sworn in, it’s beneficial to look ahead at what his administration’s employment law agenda might look like. Now that Democrats control all three levels of government, employers could be hit with many new laws and regulations in the years ahead.
Many Workplace Issues in Flux
Government contracting. One of the first orders of business will be the rescission of President Donald Trump’s Executive Order (EO) on “Combating Race and Sex Stereotyping,” which prohibits the federal government and its contractors from conducting certain kinds of workplace diversity training.
The 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. Reports that the U.S. Department of Labor (DOL)’s Office of Federal Contract Compliance Programs (OFCCP) would suspend enforcement of EO 13950 follow issuance of a nationwide injunction against the EO on December 22, 2020. In addition, the incoming administration of President-elect Joe Biden is expected to formally rescind the order.
Immigration. Just as President Trump focused keenly on immigration, a Biden administration will pay close attention, too, if only to undo the policies and limitations championed by the outgoing administration.
Therefore, expect a loosening of employment-related visas and more exemptions from visa limits in the STEM (science, technology, engineering, and math) areas. For more information, see “Look for Change in Tone on Immigration, Foreign Workers Under Biden.”
Independent contractors. The DOL issued a new final rule addressing when workers can legally be classified as independent contractors emphasizes the DOL’s intent to bring clarity to the issue, but with a change in administration near, the future of the rule is up in the air.
The Biden administration is expected to change the rule in the interest of continuing the Obama-era emphasis on increasing the number of workers who should be classified as employees instead of contractors. For more information, see “DOL Finalizes Independent Contractor Rule, But More Change May Be on the Way.”
Minimum wage. Biden has previously supported efforts to increase the minimum wage in various states, and his website advocates a $15 minimum rate nationally. In addition, look for a possible move toward increasing the salary threshold for the overtime exemption back to the levels proposed at the end of the Obama presidency, although the priority may be lower now since the salary requirement did go up 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.
Labor unions. In the labor area, employers often witness a dizzying back-and-forth based on a new administration’s political leanings and the National Labor Relations Board (NLRB) members it appoints. Biden has a very ambitious agenda and likely will be able to appoint a majority of the Board as current members’ terms expire.
While opposition from Republican senators can be anticipated, Biden is nevertheless expected to seek passage of a bill titled the Protecting the Right to Organize (PRO) Act. The bill would strengthen labor unions by:
- Banning mandatory “captive audience” meetings with employee groups;
- Overriding state “right-to-work” laws;
- Requiring binding interest arbitration for disputed contract terms;
- Increasing penalties for unfair labor practices; and
- Imposing liability for unfair labor practices on corporate directors and officers.
With a majority of Democratic-leaning members, the NLRB would likely overrule many of the rulings and policies of the last 4 years. For example, the Board would probably shepherd back the “quickie election” procedures, which favored unions’ ability to prevail in representation elections.
Occupational safety. Given that Biden immediately formed his own Coronavirus Task Force, the pandemic is likely to occupy much of the attention in the new administration’s early days. Thus, observers expect the government to get much more actively involved in establishing and enforcing COVID-19-related safety protocols in the workplace.
We also expect the Occupational Safety and Health Administration (OSHA) will again seek detailed electronic reporting of injury and illness information, which will then be made publicly available online. The initiative was in the works at the end of the Obama administration but was subsequently derailed. You’re also likely to see increases in inspections and resulting penalties.
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 passing the legislation. In addition, Biden’s website professes the intent to eliminate all but a few noncompete agreements and end all “nonpoaching” arrangements.
Stay Tuned
There obviously will be much more to come in the next several months. We’ll do our best to stay on top of it for you.
Dennis J. Merley was an attorney with Felhaber Larson in Minneapolis, Minnesota, prior to his retirement at the end of 2020.