January 20, 2021
What will the world look like for employers with President Biden and the Democrats in control of the Senate and House of Representatives? This article examines how key employment law issues could be addressed in such a world.
The outcome of the past election cycle will impact employers for years to come. Now that President Biden has been sworn in as the 46th President of the United States and the Democrats will control both Houses for at least the next two years, let’s take a look at how this will impact employment laws on the national level.
President Biden will wield great power in setting the agenda for all matters impacting employers. Like all Presidents, he will be able to act on his agenda through agency appointments and Executive Orders, but he also will have legislative support that few Presidents enjoy.
From the beginning, President Trump’s agenda was clearly pro-employer. He did this primarily through rolling back prior pro-employee Obama-era Executive Orders and replacing them with his own pro-employer Executive Orders. He also worked with government agencies like the NLRB and EEOC to press his agenda. Finally, President Trump was able to nominate three Supreme Court justices and nearly 200 federal judges.
With all that said, President Biden will be able to undo just about all of President Trump’s pro-employer initiatives in short order (except for the Supreme Court) and expand upon President Obama’s pro-employee administrative agenda. Biden has been very consistent in detailing his key employment related issues. In fact, he has already started moving forward with his agenda having called for the increase of the national minimum wage to $15.00 per hour.
While having control of the White House and Congress will make it easier for the Democrats to pursue and implement their agenda, the Republicans still can use a filibuster. As currently constituted, the Democratic Senate majority is not filibuster proof, meaning their party holds less than 60 seats in the Senate. The 60-seat threshold is needed to end debate for most bills and move to a vote. As a result, many agenda items President Biden may wish to have signed into law may not come to be. Thus will continue the tradition of using Executive Orders to side-step legislative roadblocks.
Now, let’s take a closer look at the impact President Biden and the Democratic Congress will have on key employment law issues:
Unions and Collective Bargaining. Biden has taken a very strong stance with his desire to strengthen unions and collective bargaining. Initiatives he supports include:
- Restoring Obama’s Fair Pay and Safe Workplace Executive Order which will require federal contractors’ compliance with various employment laws to be considered when issuing and retaining federal contracts.
- Requiring federal contractors to sign “neutrality agreements” committing not to hold anti-union campaigns. Biden would also have these types of contracts awarded only to businesses which pay a minimum of $15 per hour.
- Holding corporations and executives personally accountable for interfering with union organizing efforts and negotiating with unions in bad faith and for violating labor laws.
- Encouraging collective bargaining. President Biden believes the federal government should encourage employees to unionize. Biden is also in favor of establishing a federal right to union organizing and collective bargaining for all public sector employees.
Taft-Hartley Act and Right to Work. President Biden has stated he will seek to repeal the provisions of the federal Taft-Hartley Act, which allows the states to decide if unions and employers can require employees to join the union in order to keep their jobs with unionized employers.
The NLRB. President Obama appointed a National Labor Relations Board (NLRB) that was pro-union and strongly in support of expanding all workers’ rights. The Obama-era NLRB regularly issued decisions dramatically impacting union-free companies. Biden has indicated he will seat an NLRB similar to President Obama’s.
Joint Employer. Under President Trump, the federal Department of Labor (DOL) implemented a rule updating the joint employer standard under the Fair Labor Standards Act. The rule significantly limits the instances where a business can be classified as a joint employer, reducing instances multiple companies are liable for employment law violations involving the same employees. Since its implementation, a federal court has struck down many of the rule’s provisions. Additionally, under President Trump, the NLRB test for finding two employers to be “joint employers” was significantly weakened. President Biden will seek to restore the broad definition of joint employer within all federal administrative agencies and as outlined in the PRO Act.
Independent Contractors v. Employees. President Biden will look to increase enforcement efforts to classify workers as employees and not independent contractors. These increased efforts were a major initiative under the Obama Administration, but they were all but abandoned under President Trump. Part of “properly” classifying independent contractors and employees is the need to create clearer standards and definitions involving Gig workers. It is anticipated that there will be a federal initiative to replicate recent legislation passed in California (Assembly Bill 5) which is designed to give greater protections to Gig workers through a new three-part test (the “ABC Test”) (See prior Brody and Associates article on Assembly Bill 5).
OSHA and Workplace Safety. President Biden is expected to push ahead with the implementation of an Obama era rule, The Improve Tracking of Workplace Injuries and Illnesses, which requires most employers to electronically submit detailed reports of all workplace injuries on an annual basis. This rule was intended to help regulators identify inherently dangerous working environments. Its implementation was delayed by President Trump.
Employee Benefits. President Biden greatly desires to increase employee benefits. In this area we expect his agenda will include:
- Providing pay for family leave benefits on a national level through passage of the Healthy Families Act. The Healthy Families Act will require either paid or unpaid sick leave to employees depending on the size of the employer.
- The institution of a national 12-week paid family and medical leave program.
- Transformation of unemployment insurance into a national Employment Insurance program. This short-time compensation program, known as work sharing, is designed to keep workers employed at reduced hours, while the federal government helps make up the difference in wages.
- Enhancement of Obamacare. While not technically an “employee” benefits, it will impact employment because if it expands, there may be less pressure on employers to provide this benefit. Biden is committed to enhance this program and his election likely ensures its existence for four more years and maybe the foreseeable long-term future.
The Supreme Court. President Trump appointed three justices to the Supreme Court to tip the balance of the Court conservative by a 6-3 margin.
Many believe the Court will stay conservative for years to come; however, there are three justices currently over 70 years old (two conservative and one liberal), so multiple seats may become vacant during the Biden Administration. As an alternative to the wait and see approach, in the wake of President Trump’s push to have Amy Coney Barrett confirmed before the end of his presidency, there was a call for President Biden to “pack” the Court. President Biden has not directly addressed this issue since being elected. Court packing would entail expanding the Court from nine Justices to a larger number by passage of federal legislation. If this occurred, President Biden would fill all those new vacancies and could very quickly turn a conservative Court liberal. This remains a big unknown.
Conclusion
We can expect momentous change to the employment law landscape in President Biden’s first 100 days in office and beyond. As of now, it is unclear how many of these new initiatives will be funded, but businesses fear that much of the cost will fall to them. Exactly what the future holds is always a mystery, but the direction is clear – we are moving back to the left. Stay tuned for the details.
Robert G. Brody is the founder and managing member of Brody and Associates, a management-side labor, employment, and benefits law firm. Mark J. Taglia is counsel with the firm.
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