Published in NH Business Review (12/17/2020)
As we flip the calendar to 2021, we are anticipating a new presidential administration, a divided congress, and a starkly different U.S. Supreme Court. It is a great time to speculate about what employers might expect to see in terms of legislation, enforcement, and case law. Typically, when the presidency shifts to a new party, there are big changes. When President Trump took office, he rolled back a number of Obama-era initiatives, and we can expect a boomerang effect with President-Elect Biden restoring some of the more employee friendly regulations.
Still Managing a Pandemic
First, the country is still in the throes of a pandemic. On December 31, 2020, benefits such as Emergency Paid Family Leave, Emergency Paid Sick Leave, and Pandemic Unemployment Assistance, which have been available since last spring, are set to expire. Between now and the end of the year Congress might get it together enough to pass some type of continuing aid package. If not, a new Congress and a new administration can be expected to have that at the top of the list.
The EEOC has been the “Steady Eddie” of agencies in the shift from the Obama to the Trump administrations with much the same expected in the coming year. The types of cases filed with the agency have remained similar in type with some increase in sexual harassment claims since the advent of the #metoo era. Enforcement efforts have remained steady with more direct actions and settlements in sexual harassment cases over the last two years. We can expect to see, however, in addition to a continued focus on ending sexual and other harassment, renewed efforts to promote pay equity and diversity, equity and inclusion.
Labor and the NLRB
Candidate Biden was endorsed by almost every major labor union. He ran on a pro-union platform and has a long record of union support. He will likely support regulations to make union organizing easier. He has expressed support for the Protecting the Right to Organize (PRO) Act which is unlikely to pass given the anticipated make-up of the Senate, which will not be known until the Georgia special election in January.
Biden will have the opportunity to appoint at least one member to the NLRB early in his administration and likely more later. He will appoint the NLRB General Counsel, who will be in the powerful position of issuing interpretive guidance on labor regulations. Issues on which there is likely to be an about face include the handling of internal investigations, employee handbook policies, confidentiality mandates, and employee engagement on social media.
Minimum Wage and Employee Classification
Candidate Biden signaled his intent to seek an increase of the federal minimum wage to $15.00 per hour. Again, with a Republican Senate, or a slim margin held by the Democrats, such legislation is unlikely to pass.
However, the new president will appoint a new Secretary of Labor. Unlike other cabinet positions which may go to moderates, the Labor Secretary is likely to be someone with a strong union background. President Biden may ask the DOL to revisit the salary test for exempt employees and perhaps even review the duties test. A Biden DOL may also withdraw the recently proposed rule on independent contractor classification if it is not finalized before the end of the year or, alternatively, seek new rulemaking to make it more difficult to classify individuals as contractors.
Changes in immigration policy are imminent. In addition to restoring DACA, the new president may seek to make the use of E-Verify mandatory for most employers. Restrictions imposed by the Trump administration on employment based visas are likely to be loosened. These include H-1B visas, to temporarily hire non-immigrant workers in specialty occupations, H-4 visas for their spouses, L visas for temporary workers, J visas for work-and-study-based exchange visitor programs; and H-2B visas for temporary non-agricultural workers.
Arbitration and the ACA at the Supreme Court
Although there are not many important employment cases currently pending, the Court heard oral arguments in California v. Texas and Texas v. The United States on November 10. These cases could decide the fate of the ACA.
The Court will also decide a case which could impact the efficacy of employment based arbitration agreements. The Roberts Court has been supportive of mandatory arbitration agreements in the employment context. President-Elect Biden supports the Forced Arbitration Injustice Repeal (FAIR) Act which was filed in 2019. This law, if passed, would prohibit requiring employees to sign pre-dispute arbitration agreements as a condition of employment. In a Republican, or barely Democratic, Senate this bill will likely be doomed so the Supreme Court is expected to have the final word on arbitration for the time being.
It is always fun and interesting to speculate about what a new President will attempt to do as he takes office and how successful he will be. It is safe to say, however, that there will be change.