SIX KEY EMPLOYMENT LAW CHANGES UNDER THE BIDEN ADMINISTRATION
Megan Coughlin, Attorney
Jackson Lewis, P.C.
Jacksonville, Florida
The Biden administration is expected to pursue several significant pieces of workplace legislation. This article highlights several key changes the 46th President is likely to prioritize within the first six months of his administration.
Expansion of Paid Leave
President Biden is expected to support federal paid leave benefits for employees. President Biden has previously voiced support for universal paid sick days. In addition, President Biden supports 12 weeks of paid leave for all workers to care for their newborns, newly adopted or fostered children, for their own or a family member’s serious health condition, or to care for injured service members or deal with “qualifying exigencies arising from the deployment” of a family member in the Armed Services.
Raise Minimum Wage
President Biden supports a $15 federal minimum wage. In addition, the Biden administration will likely seek to eliminate the reduced minimum wage for tipped employees (i.e., the tip credit) and likely will seek an increase in the minimum salary to qualify as an exempt employee under the FLSA.
Independent Contractors
Under President Biden’s administration, the Department of Labor (DOL) will likely withdraw its independent contractor rule which altered the “economic realities test” used to evaluate who qualifies as an “independent contractor” under the Fair Labor Standards Act (FLSA). On January 20, 2021, President Biden’s Chief of Staff signed an Order that immediately barred further advancement of the rule. The DOL may also take steps to further expand the definition of who qualifies as an “employee” under federal law, making it more difficult for businesses to contract with independent contractors without fear of misclassification.
Pro Union Policies
On January 25, 2021, President Biden named Peter Sung Ohr to be acting General Counsel of the National Labor Relations Board (NLRB). President Biden will be able to appoint a majority of NLRB members who share his union-friendly views. This will likely lead to reversal of many of the precedents set by his predecessor.
President Biden ran on a platform of strengthening worker organizing, collective bargaining, and unions. He is expected to sign the Protecting the Right to Organize (PRO) Act, which would significantly strengthen the ability of unions to organize by:
- Banning employer mandatory “captive audience” group meetings;
- Compelling mediation in first contract negotiations where agreement is not reached within 90 days;
- Preempting states’ “right to work” laws;
- Allowing “unfair labor practice” claims to be brought as civil actions in court;
- Adding fines and liquidated damages (possibly six figures) as remedies for unfair labor practices; and
- Adding personal liability for unfair labor practices for corporate directors and officers.
The Equality Act
Last year, in Bostock v. Clayton County, Georgia, the Supreme Court held that Title VII’s prohibition against sex discrimination encompasses discrimination based on sexual orientation and gender identity. President Biden has stated that he plans to sign the Equality Act within his first 100 days in office. The Equality Act, which previously passed the House of Representatives, would prohibit discrimination with respect to employment, housing, education, and public accommodation based on sexual orientation and gender identity. Hours after taking office, President Biden signed the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” affirming his administration’s commitment to diversity, equality and inclusion.
Executive Order 13950
As part of his Executive Order on Advancing Racial Equity and Support for the Underserved Communities Through the Federal Government, President Biden has revoked President Trump’s Executive Order 13950, which prohibited contractors and recipients from including certain “divisive concepts” in their diversity and inclusion, harassment, and related equal employment opportunity training.
The transition of one Presidential administration to another, as it affects America’s workforce, is always one of upheaval and change, perhaps now more than ever. As the Biden Administration’s agenda emerges, it is incumbent upon employers to be vigilant in ensuring that their policies and decisions are up to date in the face of these changing times.