As employers look ahead to President-elect Joe Biden’s administration, questions abound about what to expect, but a more employee-favorable attitude toward the labor movement certainly wouldn’t be a surprise.
Much of what a Biden administration can accomplish hinges on which party controls the Senate. Currently, Republicans hold a majority, but runoff elections in Georgia scheduled for January 5 could change that. If Republicans keep their advantage, the new administration will have a harder time accomplishing goals through legislation, but changes are still in the offing.
“If the Senate does not flip, one should expect major changes with respect to regulatory and administrative agency initiatives—not in the legislative area,” Richard S. Cleary, an attorney with Frost Brown Todd LLC in Louisville, Kentucky, says, adding employers can expect the labor movement “will want the wish list it has had for years.”
If Democrats gain control of the Senate, Brian Garrison, an attorney with Faegre Drinker in Indianapolis, Indiana, says employers can expect a “seismic change.”
Some changes will be slow to accomplish, but others are likely to be quick. For example, a quick rescission is expected of the Trump administration’s recent Executive Order (EO) placing limits on diversity training at federal agencies and private employers that do business with the federal government.
“A Biden administration will follow the wishes of the vast majority of businesses on the diversity order,” Garrison says.
Burton J. Fishman, an attorney with Fortney & Scott, LLC in Washington, D.C., agrees the diversity order will be rescinded along with many other Trump administration EOs.
Legislation and Policy Possibilities
Fishman says employers should understand the impact of a president’s appointment power. A new secretary of the Department of Labor (DOL) and administrator of the DOL’s Wage and Hour Division are likely to issue new opinion letters and revise regulations on such things as independent contractors and joint employment.
Fishman also expects new leadership at the Occupational Safety and Health Administration (OSHA) and the U.S. Centers for Disease Control and Prevention (CDC) to issue mandatory COVID-related safety and health standards. Those changes “may have the effect of increasing the likelihood of a relief bill with real standards,” and “a liability waiver has a chance,” he says.
As for unions, Biden has expressed his support for the Protecting the Right to Organize (PRO) Act, which would be the most comprehensive change in the National Labor Relations Act in recent years, Garrison says. The PRO Act would make it more difficult for employers to express their views to employees on the consequences of joining a union and easier for employees to organize.
Also, Garrison says the PRO Act would codify the ABC test in determining whether workers can be classified as independent contractors or should instead be considered employees entitled to benefits and protections required by law. The ABC test strictly limits the kind of worker that can be classified as an independent contractor.
The PRO Act will be put forward in the event of a Democratic majority in the Senate, Fishman says. “But to succeed, the filibuster must go as well, and that is unlikely even with a 50-50 Senate,” he says, adding he expects that “prounion activity—and there will be a lot—will be through executive action.”
On the COVID-19 front, Garrison says employers are more likely to see extensions of measures passed last spring, such as the Families First Coronavirus Response Act (FFCRA), which is set to expire on December 31, than they are to see a more comprehensive worker-friendly legislative package.
Agency Changes
The new administration will bring changes to the DOL and various employment-related agencies. Time will tell whether Biden’s Labor secretary will be from the more liberal wing of the Democratic party, such as former presidential candidate and Senator Bernie Sanders, or someone from the moderate side of the party.
“It’s too early to tell at this point what direction the DOL will take,” Gary S. Fealk, an attorney with Bodman PLC in Troy, Michigan, says. “We will need to see how the appointment and confirmation process plays out. If Democrats don’t get control of the Senate, I don’t see Bernie Sanders or a similar type being confirmed.”
Even if the Democrats do take control of the Senate, Fealk says he doesn’t expect a Sanders appointment because Vermont’s governor is a Republican and would likely appoint a Republican to Sanders’ Senate seat, which could swing control of the Senate to the GOP depending on who wins the Georgia runoffs.
Employers need to keep an eye on actions of the National Labor Relations Board (NLRB), since its decisions have a significant impact on their day-to-day operations, Garrison says.
The NLRB’s makeup won’t change as the administration changes since Board members serve fixed terms, but—depending on Senate confirmation—Democrats are likely to gain more of the five Board seats during the Biden administration. The general counsel (GC) also doesn’t change with the administration, and current GC Peter Robb’s term doesn’t expire until late in 2021.
The GC position is important since that person decides what cases the Board considers. Garrison says it will be interesting to see what happens with the position since the NLRB is similar to the Consumer Financial Protection Bureau, and a U.S. Supreme Court case has found the president has the right to terminate the head of that panel before the term expires.
So, Biden might try to terminate Robb before the end of the GC’s term, thereby changing what issues the NLRB pursues and stopping Robb from implementing the Trump administration’s priorities.
The current NLRB has made a point of tackling issues through rulemaking instead of issuing decisions on cases. “Regulations are not immutable, but they take time and effort to change,” Fishman says, so he expects the Board’s position on joint employment and the gig economy will be in place for a while, “even if it differs from that of the DOL.”
Garrison says employers breathed a sigh of relief as a result of some of the current NLRB’s actions, such as its stand on joint employers, how the Board analyzes work rules, how employers can respond to profane outbursts from employees, and confidentiality in investigations. That sigh of relief is expected to be short-lived, though, because he expects the Board to eventually return to previous standards.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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