Most newly-elected presidents have a different take on employment and workplace laws than their predecessors and that is certainly the case with President Biden. While it is impossible to predict what he might be able, or willing, to accomplish during his term, President Biden has given some indication of his intentions regarding employment law:
- Extend the FFCRA. With the outbreak of the Coronavirus, the U.S. Congress enacted the Families First Coronavirus Response Act (“FFCRA”), which provides for up to 80 hours of paid leave for Coronavirus–related issues and up to 10 weeks of leave at two-thirds pay for childcare issues related to the Coronavirus. However, the FFCRA expired on December 31, 2020. President Biden has indicated an intent to extend the FFCRA until September of 2021. In addition, many states have enacted Coronavirus paid leave laws which will be in effect in 2021.
- Increase the federal minimum wage. Democrats have long sought to increase the federal minimum wage and President Biden agrees. Look for legislation increasing the federal minimum wage to $15.00 per hour.
- Federal paid family and medical leave. For many years, the Family and Medical Leave Act (“FMLA”) has required employers with more than 50 employees to provide up to 12 weeks of leave for healthcare issues of an employee or family member, but not paid leave. Workplace advocates have been pushing for paid leave and have succeeded in many state legislatures (including Colorado). However, this creates a patchwork of leave laws across the country which are difficult for multi-state employers to comply with. In recent years, some legislators have been considering a federal paid leave law. It appears that the Biden Administration will support these efforts.
- Independent contractors. The new administration will likely crack down on employers who misclassify employees as independent contractors and enact more strict standards for classifying a worker as an independent contractor.
- Arbitration agreements. President Biden is likely to support federal legislation to make it illegal for employers to require employees to sign pre-dispute arbitration agreements as a condition of employment. In light of recent court decisions upholding such agreements, and waivers of important remedies such as class actions, this legislation could be very significant.
- Legislation to limit enforceability of non-compete agreements. President Biden has voiced support for federal legislation to limit the enforceability of non-compete agreements to a few very specific situations, such as protection of narrowly-defined trade secrets. In addition, he has expressed support for prohibiting “no-poaching agreements,” agreements whereby employers agree not to hire each other’s employees.
In addition to these specific issues, we can expect the EEOC and Department of Labor under the Biden Administration to be more aggressive than the agencies under the Trump Administration on issues such as harassment, discrimination, whistleblowing, and wage/hour issues.
Employers would be well-advised to review their employment policies and practices and consult with competent employment counsel.