The Transition Begins: How Will the Biden-Harris Administration Impact Employment Law?

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Part One in a Series

On Saturday morning, November 7, 2020, major news organizations called the 2020 presidential election for Joe Biden and Kamala Harris.  On Sunday, November 8, 2020, the Biden-Harris team updated its transition website to highlight four priorities: COVID-19, economic recovery, racial equity, and climate change.

While workplace issues are not explicitly included in the transition plan, and the campaign itself has focused more on the pandemic and the economy, the Biden campaign has certainly not been silent about labor and employment issues.  In a series of blogs over the next several months, HR Legalist will outline some of the biggest issues for employers to watch over this transition period.

Overview of the Biden-Harris Platform

The Biden-Harris campaign website includes an aggressive multi-pronged platform for changes to labor and employment law across the country, including:

  • Making it easier for workers to organize and collectively bargain;
  • Increasing penalties for interference with employee organizing;
  • Reinstating the prior employee-friendly joint employment standard;
  • Increasing the federal minimum wage to $15 per hour, with the potential for automatic increases in the future;
  • Extending overtime pay to more workers, possibly through the reinstatement of an Obama-era rule limiting the scope of the “white collar” exemptions;
  • Establishing a more employee-friendly standard for misclassification of workers as independent contractors, similar to the “ABC” test currently used in states such as California and New Jersey;
  • Eliminating non-compete clauses and other restrictive covenants used by employers to protect against unfair competition by former employees;
  • Increasing enforcement of workplace safety and health mandates through OSHA; and
  • Banning employers from using mandatory arbitration agreements to manage the risk of individual and class action employment claims.

These plans represent a significant swing of the pendulum in a worker-friendly direction, and could pose many challenges for employers.  However, many of these measures will require the support of both the House and the Senate, and the composition of the Senate will be unclear until the Georgia runoff elections are determined in early January.  Other measures could change sooner, through executive order or changes to administrative agencies such as the Department of Labor and the EEOC.  HR Legalist will delve into these issues in further detail in later blogs.

To kick off this series, we will be addressing a critical issue that has been top of mind for employers and employees alike: COVID-19.

Potential Action on Pandemic-Related Workplace Issues

While business openings, closures and pandemic mitigation measures will likely still be governed by state and local regulations during the Biden administration, we expect the administration to take a more active role and making recommendations and setting policy on a national level, including a potential national mask mandate and federal actions on distributing a potential vaccine.

In a further signal that the pandemic will be a priority, Biden unveiled his COVID-19 advisory board on November 9, 2020.  The Biden transition plan calls for the Centers for Disease Control (CDC) to provide “specific evidence-based guidance” regarding the risk of viral spread, including when to open or close businesses, bars and restaurants.

The last nationwide COVID-19 relief package was the Paycheck Protection Program expansion that President Trump signed on April 24, 2020.  Expanded family leave and emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA) will expire on December 31, 2020.  More recently, Senate Majority Leader Mitch McConnell indicated his support for passing a new relief package before the end of the year.  However, disagreements in Congress over the details of the bill and the amount of funding may delay any new relief until after inauguration day.

During the campaign, President-elect Biden indicated that he would support the following employment-related pandemic relief measures:

  • Expanding the additional $600 per week in federal unemployment benefits that expired in July 2020; and
  • An extension of emergency paid sick leave and family medical leave under the FFCRA. Biden would likely support a bill that would make these benefits available to both employees and part-time workers, gig workers and independent contractors.

On the other hand, Senate Republicans favor the inclusion of valuable liability protections for businesses, including protection from OSHA claims, labor law claims, and age and disability lawsuits.  Given President-elect Biden’s experience negotiating with Republican lawmakers in the Senate, employers should stay tuned to see if a compromise bill, including both benefits for employees and liability shields for employers, could head to the President-elect’s desk in 2021.  In the meantime, employers should continue to focus on compliance with state and local restrictions, which could increase as new case counts continue to exceed 100,000 per day.  Depending upon location, employers should consider extending remote work and ensuring that they have adequate PPE available.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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