Summary List Placement
Policies and regulations shift any time there’s a new president, but legal and policy experts expect that the incoming Biden administration will usher in big changes in the area of employment law, impacting both workers and businesses.
President-elect Joe Biden has made worker protection a key part of his platform, promising to beef up labor law enforcement, support unions and collective bargaining, and strengthen workplace protections.
“Biden has been very vocally supportive of the labor movement,” said Seth Borden, a partner at the corporate law firm Perkins Coie. “He has promised to be the most pro-labor administration in the history of the country.”
Earlier this month, Biden announced that Boston mayor Marty Walsh, a former union president who pushed for a $15 minimum wage in Massachusetts, will be his labor secretary.
Employment lawyers who represent both employees and employers told Insider Walsh’s nomination is a sign the Biden administration is taking its promises to workers seriously.
Walsh is “somebody who has an understanding of what it’s like to stand in an unemployment line,” said Rebecca Pontikes, a Boston-based employment and civil rights lawyer. “He’s also coming from a very expensive city where he gets how tough it is to not make enough money to pay rent. He probably has a healthy skepticism of the gig economy.”
Borden said Walsh is known for “being a listener” who tries to find policy consensus when possible.
“But I don’t think anyone in the management community has any delusions about the policy directions of the department of labor with him at the helm,” Borden said. “He will aggressively pursue the agenda the administration has laid out.”
Biden will likely roll back Trump-era rules
One of the first things many experts expect to happen is for the Biden administration to halt or roll back a number of Trump-era rules that most labor advocates consider to be harmful to workers.
This includes a proposed rule that’s set to narrow the definition of an employee and re-classify many workers as independent contractors, according to Margaret Poydock, a policy associate at the Economic Policy Institute, a think tank that analyses the economic impact of policies and proposals on working people. Unlike employees, contractors are not covered under many workplace protection laws, like the Fair Labor Standards Act.
Blocking the independent contractor rule is “something that we hope and expect that President-elect Biden would put a halt to,” Poydock said.
A Biden administration might also increase misclassification enforcement, going after businesses that wrongly categorize full-time employees as contractors.
The changes would impact many businesses, but in particular those that rely on the gig economy. Companies like Lyft and Uber have long been lobbying for state and federal regulations to classify their workers as independent contractors. If more gig workers are classified as employees, those companies will be responsible for adhering to a broader range of employment laws.
“There’s no question that the Department of Labor will pursue the restoration of earlier rules that make it easier to establish employee status as opposed to contractor status,” Borden said. “I would also expect employers to push back that these rules are potentially disruptive to a wide range of business models during a challenging time for the economy.”
Other workplace protections and requirements
Labor and employment experts also expect the Biden administration to push for greater workplace protections to protect workers from the threat of COVID-19, to update the overtime threshold, to raise the minimum wage, and to expand paid leave.
“Of course, workplace safety is going to be a big one for the Department of Labor,” said Beverly Alfon, a corporate employment lawyer at SmithAmundsen. “I do expect that there are going to be more COVID-19 specific standards put into place by [the Occupational Safety and Health Administration] and, more importantly, an increase in enforcement.”
“For employers, now more than ever, compliance is key,” Alfon added. “They have to anticipate that there are going to be more legal requirements and more enforcement.”
And while it won’t happen immediately, Biden’s presidency is set to change the composition of the National Labor Relations Board, the federal agency responsible for enforcing US labor law when it comes to unions and unfair labor practices.
The NLRB is currently in Republican control, but Biden will likely have an opportunity to name a new Democratic member before the end of the year, making the board more worker-friendly. A Democratic-majority NLRB is likely to reverse some of the prior board’s decisions, like the joint employer rule, which currently makes it harder for employees to hold employers responsible for labor law violations. These changes could bring more liabilities for business owners.
Protecting the right to organize
A lot of labor and employment law changes are likely to come from the executive branch, but the Biden administration will also be joined by a Democrat-led Congress. Some experts believe that opens the doors for the Protecting the Right to Organize (PRO) Act to get enacted into law.
Passed by the House early last year, the PRO Act would make significant changes to existing labor law, mostly in favor of worker’s rights. The act is “a sweeping overhaul bill intended to facilitate union organizing and to make labor law more favorable to employees and unions,” Borden said.
“It’s anticipated that at least major components of what passed the House last year will reappear with the current Congress,” Alfon said.
“It could codify pro-labor case law that would allow unions to utilize an employer’s email system to organize employees,” she added. “It could impose a lower threshold for joint employer liability.” The bill also includes a provision to allow micro-bargaining units and could prohibit right-to-work laws.
Unlike the Department of Labor’s rule changes, the PRO Act isn’t something that workers or businesses should prepare for on Day 1 of Biden’s presidency, experts noted.
“It’s ambitious, and I think it’s safe to say it will face significant headwinds as a piece of legislation in a closely-divided Senate,” Borden said.
Nevertheless, Borden said it’s best to consider the proposed bill as a roadmap for the incoming administration. “It is certain to be the blueprint for other regulatory steps, whether it be rulemaking and investigations by agencies or executive orders,” he said. “All of the things laid out in the PRO Act are things to keep an eye on.”
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