What Employers Should Expect Under the Biden Administration

King & Spalding

Issue 5: 10 in 10

The Biden Administration has made it clear that it will make significant changes to the American workplace, including expansion of and increased regulation of workers’ rights.

One of the areas of particular focus for employment law changes will come from the National Labor Relations Board (“NLRB”), which oversees union elections and upholds workers’ rights to organize. President Biden, a vocal supporter of unions, recently named Jennifer Abruzzo, a former union attorney, to the NLRB chief prosecutor position. She is expected to bring a critical eye towards employer conduct, with an increased prosecutorial focus similar to that of the Obama Administration’s NLRB. These NLRB changes will make organizing efforts more challenging to defeat.

Additionally, the House of Representatives recently reintroduced a bill titled “Protecting the Right to Organize Act of 2021” (PRO Act), which would strengthen unions’ abilities to organize workers. The proposed bill will impact employers dramatically by banning mandatory “captive audience” group meetings; preempting states’ “right to work” laws; and expanding personal liability for unfair labor practices for corporate directors and officers. The PRO Act also allows a private right of action for unfair labor practice claims.

Also, during his campaign, President Biden advocated for employment status for gig economy workers and supported federal adoption of the stringent three-prong “ABC test” to distinguish employees from independent contractors. If the federal government adopts this test, more gig economy companies would need to explore reclassifying their contractors as employees.

Further, the Biden Administration is expected to push for new disclosures and regulations around social issues, including pay equity and diversity. For example, President Biden recently reintroduced the Paycheck Fairness Act. Under the proposed legislation, only “a bona fide factor other than sex, such as education, training or experience” can justify a pay difference between men and women who perform substantially equal jobs and work at the same establishment. In effect, the bill would require employers to explain the factor underlying a pay differential. The Biden Administration also may seek to revive the Obama-era pay data reporting laws.

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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