What Changes to Workplace Law Can Employers Expect Under the Biden Administration?

Dec 11, 2020

As Inauguration Day quickly approaches, many employers may be wondering what the future of workplace law might look like under the Biden administration. Below is a summary of the many pro-employee changes that are likely to occur over the next four years, many of which will depend on the Georgia Senate races.

Labor Law – the National Labor Relations Board

Some of the most major changes to the future of workplace law could revolve around the National Labor Relations Board (“NLRB”) and the National Labor Relations Act (“NLRA”). Employers can expect the NLRB to soon return to its pro-employee Obama-era days, especially once the Board composition swings back to a Democratic majority, which is expected to occur as early as summer 2021.

Employers can expect the soon-to-be Democrat-controlled NLRB to overturn many pro-employer decisions and regulations that occurred during the Trump administration. For instance, the NLRB will likely revert back to rigid pro-employee handbook standards and reinstate several Obama-era “quickie-election” procedures that made it easier for employees to unionize.

President-elect Biden has also publicly supported the Right to Organize (PRO) Act that would undoubtedly strengthen worker organizing and collective bargaining. The PRO Act would amend the NLRA for the first time in over 40 years to ban employers from having mandatory captive audience meetings, expand the NLRA’s protections to more workers by adopting strict criteria to classify a worker as an independent contractor, and for the first time, institute monetary penalties for violations of the NLRA, including adding personal liability for corporate directors and officers.

The House of Representatives passed the PRO Act in February 2020 but the Act was never taken up by the Republican-led Senate. The fate of this legislation will likely depend on the current Senate races in Georgia.

Workplace Safety Law – OSHA

Employers may be subject to more workplace safety inspections and harsher reporting requirements under the Biden administration. During his campaign, Biden promised to double the number of OSHA inspectors while in office, which was at a 45-year low during the Trump administration. More safety inspectors will likely lead to more workplace safety inspections, citations and penalties.

Additionally, Biden may reinstate an Obama-era 2017 reporting rule that was abandoned during the Trump administration. Such rule required public disclosure on OSHA’s website of certain accident and injury data reported by employers in order to encourage employers to increase their efforts to prevent worker injuries and illnesses.

Wage & Hour Law

Given Biden’s campaign promises to increase the national minimum wage by 2026, the Biden administration will most certainly push to increase the federal minimum wage to $15/hour from $7.25/hour.

Pay Equity

Employers should also expect the Biden administration to push several measures supporting pay equality in the workplace. One such measure may be previously developed legislation entitled the Paycheck Fairness Act, which was passed by the House of Representatives in 2019 but stalled in the Senate. This Act would encourage pay equity by amending equal pay provisions of the Fair Labor Standards Act to: (1) restrict the use of the “bona fide factor” defense to wage discrimination claims, (2) enhance non-retaliation prohibitions, (3) make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages, and (4) increase civil penalties for violations of equal pay provisions.

If the Senate majority shifts from Republican to Democrat, this piece of legislation may have a good chance of being signed into law.

Paid Leave

Once in office, President-elect Biden is expected to renew the paid leave provisions of the Families First Coronavirus Act (“FFCRA”), which are set to expire on December 31, 2020, unless otherwise renewed by Congress.

Additionally, President-elect Biden has shown support for the FAMILY Act, an insurance-like program funded by both employee and employer tax contributions. The FAMILY Act would provide 12 weeks of partial paid leave for the birth or adoption of a child; to care for an ill, injured or disabled child, parent, spouse, or domestic partner; to care for one’s own serious medical issues; or for certain military caregiving and leave purposes.

Worker Classifications

Lastly, it is expected that the Biden administration will attempt to overturn the Trump administration’s proposed independent contractor and joint employer regulations, which made it easier for employers to classify workers as independent contractors and harder for workers to claim they are joint employees of multiple entities.

If you have any questions regarding the above potential changes to workplace law or are interested in learning more about these changes you can contact Olivia M. Hochschwender or you can register for our upcoming special edition Rise & Learn “The Future of Workplace Law – What Can Employers Expect Under the Biden Administration” which will be held virtually on January 14, 2021.

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