President-elect Biden’s Labor Agenda Comes Into Clearer Focus And Employers Need To Plan Accordingly Thumbnail

President-elect Biden’s Labor Agenda Comes Into Clearer Focus And Employers Need To Plan Accordingly

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With the Democratic Senatorial wins in Georgia, it is now clear that in addition to Executive Orders and regulatory changes the new President is likely to make legislative changes that employers will need to prepare for. The President-elect’s agenda was clearly articulated in his campaign platform, indicating that he would:
  • Check the abuse of corporate power over labor and hold corporate executives personally accountable for violations of labor law;
  • Encourage and incentivize unionization and collective bargaining; and
  • Ensure that workers are treated with dignity and receive the pay, benefits and workplace protections they deserve.”
Employers should expect that President-elect Biden will move swiftly in those areas where he is able to initiate changes designed to achieve these goals. Some changes will take more time than others, but clearly a far more employee/union friendly administration will dramatically change the playing field on the labor front. 

Those trying to predict the likely focus of the Biden administration need only look to the last several years of the Obama administration, including proposed legislation, such as the “Protecting the Right to Organize Act” (the “PRO Act”) for a clear indication of where changes will be made.  Likely proposals include legislation that would allow for unionization based on card checks, banning of employer captive audience meetings during union representation campaigns, mandatory mediation and interest arbitration for first contract collective bargaining, and potential liability for employers who commit unfair labor practices under the National Labor Relations Act.  Given the results in Georgia, it is likely that the PRO Act or some variation of that Act will be on the new President’s early agenda.

Other pro-employee initiatives will likely take longer.  The current Republican majority on the National Labor Relations Board (the “Board”) will remain in place at least until August of 2021, allowing that majority the opportunity to put in place some of the Trump-era changes they have sought through rulemaking before President-elect Biden will have an opportunity to name a majority of Democratic members to the Board.  While there had been speculation about the possibility of President-elect Biden attempting to replace the current NLRB General Counsel, Peter B. Robb, most commentators believe that such a move could backfire and that it is likely that General Counsel Robb will remain in place for the balance of his term (November 17, 2021), directing the enforcement activity of the Board. 

Despite a delay in initiating change at the NLRB, change is coming and it is likely that a reconfigured Board will return to many of the Obama-era standards.  Changes likely to be seen include yet another attempt at defining joint employer responsibility, composition of bargaining units, and utilization of company communication platforms such as e-mail to enhance union organizing  efforts. 

In addition to these changes, President-elect Biden’s naming of former Boston Mayor Marty Walsh, a union member for  more than 30 years and former President of the Laborers Union, Local 223, as his Secretary of Labor, sends a clear message that his Department of Labor (“DOL”) will be focused on significant pro-employee changes.  Anticipated changes may include:
  • ​Minimum Wage – President-elect Biden has called for a $15 federal minimum wage;
  • Overtime – The DOL is likely to revive an Obama era overtime rule that had raised the minimum salary requirement for exempt status;
  • Worker Classification – President-elect Biden and his DOL are likely to support an aggressive prosecution of employers who violate labor laws, including those who intentionally misclassify employees as independent contractors;
  • Gig Workers – Employer classifications of “gig economy” workers as independent contractors has President-elect Biden’s attention as well.  He has previously articulated his support for utilizing a strong three prong “ABC Test” to distinguish employees from independent contractors.  The future President has stated that he intends to “work with Congress to establish a federal standard modeled on the ABC Test for all labor, employment and tax laws.”  Companies like Uber and Lyft as well as other gig economy employers will need to watch this area very closely for further developments;
  • Enhanced Enforcement of OSHA Requirements.  In addition to greater enforcement of existing OSHA guidelines and regulations, employers should expect new guidance and regulations with respect to COVID related protections;
  • Expansion of Paid Leave for Employees – The DOL is likely to propose a continuation of paid leave during the COVID pandemic (it expired 12-31-20), as well as a legislative effort to require paid family medical leave; and
  • Arbitration Agreements – Finally, mandatory arbitration agreements for employees are a likely target of the new administration.  President-elect Biden has stated his intention to enact legislation prohibiting employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their rights to class action lawsuits or collective litigation.  This, of course, parrots some of the state legislation already in place.    
As discussed above, the new administration will likely implement an aggressive and targeted labor policy to address each of the items that President-elect Biden has indicated are linchpins in his stated agenda of “limiting the abuse of corporate power, encouraging and incentivizing unionization and collective bargaining, and ensuring that workers are treated with dignity and receive the paid benefits and workplace protections they deserve.”  Employers and their counsel will need to monitor each of these developments closely and perhaps, in the not too distant future, change, yet again, their employee policies and handbooks to reflect a “sea change” in labor policy. 

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