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Biden Election Will Have Employment and Labor Consequences

November 12, 2020

By Michael Burns, courtesy of SBAM Approved Partner ASE

Although the senate remains in republican hands and can act as a stop-gap to new legislation, with the presidency to be held by a democrat, President-Elect Joe Biden, the Executive Branch and in particular the Department of Labor, will change direction.

President Trump had the Department of Labor modify regulations and policy in a pro-business direction. The Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance (OFCCP), the Wage and Hour, National Labor Relations Board, and the Occupational Safety and Health (OSHA) departments all modified, reversed, and eliminated pro-labor regulations and policies the previous administration had made during its tenure.

So, with democratic administration what employment and labor regulations, rules, policies, and executive orders can we anticipate changing, both in the near and longer term?

National Labor Relations Board (NLRB) – With a Biden presidency the party in power eventually gets 3 of the 5 NLRLB seats and as has happened in previous changes in the Washington administration the newly comprised Board will no doubt go to work re-shaping labor policy recently re-carved by the Trump Administration through rulings and perhaps some regulatory change if they can make it happen. This will not be an immediate change because the Board members serve for a set term. This may result in some initial pro-business actions but as Trump appointees roll off, Biden appointees will take their turn.

What to watch for? Get ready to make some employee handbook adjustments and also possible rescission of the reconstituted union organization election regulations that had reversed the more aggressive components of Obama’s “Ambush” or “Quickie” election rules. Though some official actions will take longer to undo, the New York Times on Monday reported Biden will start reversing much of Trump’s labor policy the first day in office.

The Equal Employment Opportunity Commission (EEOC) is set up the same way. The EEOC, which will contain three Trump appointees until at least July 2022, will also eventually switch over to democratic control again. For now, it is expected most democratic initiatives such as resurrecting the EEO-1 Report compensation and data collection requirement will be stalled until that time.

Occupational Safety and Health Agency (OSHA) – For most, if not all, of the Trump Administration this agency has been without a formal leader. Instead headed by Department of Labor Assistant Secretary Loren Sweatt.  Although the COVID pandemic calls for more federal safety and health guidance, it has not resulted in any formal action to date by OSHA.

What to expect?  It is expected a Biden appointee will take up employer safety rules to address employer pandemic safety and health compliance at a national level rather than leaving it to the states and local government to create a patchwork of employer policy and rules. As always, a democratic run OSHA will be more focused on enforcement. This will include fines and probably more public shaming of employers who are found to have violated OSHA rules and regulations.

One early rumor is Bernie Sanders is being considered for the Secretary of Labor cabinet seat.

Executive Orders (EO) – In addition to legislation, regulation, and agency rulings, sometimes a president will turn to Executive Orders when they can’t get a broader law or regulation through or wants to do something quickly. With the U.S. Senate still in republican hands, a Biden Presidency will not be able to make much legislative headway, but EO’s can be implemented immediately.   

In the employment and labor area, Executive Orders have been used to partially implement what a President’s Administration and Congress can’t (or doesn’t want) to implement nationally. Executive Order reach is generally within the sphere of government employment but also includes contractors and sub-contractors that do a level of business with the federal government. The impact of an EO can be quite large because it can  start with the 2.1 million federal employees and can reach down to millions more employees that work for federal contractors and sub-contractors. Think EO 11246 (affirmative action EO).

What to watch for?  There can be a lot of change through Executive Order and the Trump presidency has used them to make some serious “right turns.” Just last month he issued and Executive Order intended to loosen up the civil service protections that surround federal employees (13957). This EO was allegedly issued to allow easier discharge of federal employees deemed disloyal.

Recently a more controversial EO (13950), addresses alleged race and sex stereotyping and scapegoating in diversity, equity, and inclusion training that federal contractors and sub-contractors use to correct disparate and adverse impact discrimination in their workplaces. It also created a hotline for workers to use to lodge complaints against unlawful training programs. Unlike EO 11246, this EO may have a short life span.

Biden has also pledged to reinstate an EO that only awards government contracts to those employers who support their workers and are in full compliance with federal labor law and regulation. This will open the door to a lot of complaints of alleged employer anti-union animus and make it easier for partisan agencies to threaten debarment unless the employer capitulates to labor demands.

A Biden presidency will most likely see its share of new EO’s. If nothing more than to rescind the more politically adverse EO’s the current administrations issued.

Legislative Agenda – Regardless of whether progressive employment and labor legislation can get passed through the senate, there will be legislation intended to support his pro labor agenda. Some legislation that will be teed up in short order may be:

  • Expanding the PRO Act – This law would put stiffer penalties on companies and executives that interfere with organizing. It would prohibit mandatory employee meetings where the employer may present their side of the organizing argument, formally the “persuader rule”; codifying a shorter union election timeline; and prevent newly organized employers from “foot dragging: initial contract bargaining.
  • Increase the federal minimum wage – Biden has promised to try and move the current federal minimum wage, $7.25/hr., up towards $15.00/hour.
  • Paid leave – Employers with over 50 employees have had to provide unpaid family and medical leave for over 25 years. With the recent FFCRA bestowing paid leave to employees (temporarily) it is easy to see this administration taking a run at installing paid leave for all workers dealing with their or their families serious health conditions.
  • Eliminating individual arbitration and prohibiting class action lawsuits – Biden has stated that removing these employer rights is an objective of his, but he will run into the Federal Arbitration Act. This would have to be repealed, and that is not likely with the current make-up of congress.
  • Joint Employment – This issue is in play both regulatorily and legislatively. The democrats do not like independent contractor status and would like to see all workers employees of someone. Eliminating independent contractor status in favor of joint employment would not threaten just the mom and pop businesses but would threaten both the gig economy and the franchise business as a whole. Suffice it for now that we will no doubt see a lot of regulatory proposals trying to expand joint employment.
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