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Canceling Loans Isn’t the Answer

By
Opinion

Editorial

 

It’s easy to find reason behind the Biden administration’s decision to cancel up to $20,000 in federal student loan debt for tens of millions of borrowers.

Indeed, the amount of overall student debt has skyrocketed in recent years, and many individuals and families are paying off amounts of $40,000 or more — and struggling, often mightily — to do so.

Student loan debt has been cited as a reason why many young professionals are unable to buy homes and achieve the lifestyle they had envisioned when they went to college and pursued a career.

But the administration’s plan to simply cancel large swaths of this debt is not the answer to this growing problem. It is costly (we don’t even know how much this is going to cost the taxpayers), arbitrary, and, yes, inherently unfair to those who have already paid off college loans, worked two or three jobs so they wouldn’t have to take on debt, or opted not to go to college because they couldn’t afford it.

But beyond that, this plan to simply take debt off the books is a simplistic approach to a problem that you can equate, in some respects, to a backyard weed. You can cut it down, like the Biden administration is doing by erasing some of this debt, but to really address the problem, you need to get at the roots.

And this will require a solution that is far more complicated than simply forgiving $10,000 or $20,000 in college-loan debt.

The cost of a college education has skyrocketed over the past few decades, far accelerating the pace of inflation. It is these spiraling costs that need to be brought under control.

Increasingly, a college education is necessary to thrive in today’s technology-driven economy. But the cost of that education — at most all institutions, but especially private, four-year colleges and universities — is now more than most individuals and families can handle — unless they assume large amounts of debt to close the gap between the cost and what they can afford.

The challenge for the Biden administration is to tackle this problem at the roots, to somehow control and perhaps even bring down the cost of a college education so that individuals and families don’t have to take on debt. That’s a big challenge and there are no easy answers.

But that answer will be a better, more meaningful solution than waving one’s hand and simply eliminating hundreds of billions of dollars in loan payments at taxpayers’ expense.

That’s because the weed is going to grow back. v

Here’s What Businesses Need to Know About Vaccination Mandates

By Contributor
Law Special Coverage

President Biden’s COVID-19 Action Plan

President Biden has issued a comprehensive plan that orders employers with 100 or more employees to mandate vaccination for their workers and requires other groups of employers to do the same. The clock is ticking on these orders, and there are many unanswered questions as well as lawsuits filed. Here’s what business owners and managers need to know.

By Marylou Fabbo, Esq. and John S. Gannon, Esq.

 

Last month, President Biden issued a bold new action plan aimed at attacking COVID-19 and fighting the dangerous Delta variant. The plan orders employers with 100 or more employees to mandate that their workers get vaccinated. Similarly, the president’s plan requires the following groups of employees to be vaccinated: those working on federal government contracts (or subcontracts), healthcare workers, and federal government workers.

Not surprisingly, many businesses and politicians are unhappy with these mandates, and one state has already filed a lawsuit against the Biden administration challenging the plan and asking the court to declare it unconstitutional. Here are some takeaways for businesses as they prepare for the novel vaccine mandate.

 

Biden Administration Mandates Vaccinations

On Sept. 9, the president announced steps that his administration is taking to boost the economy by reducing the spread of COVID-19. One step is called “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan” (more information can be found at www.whitehouse.gov/covidplan).

Marylou Fabbo

Marylou Fabbo

John S. Gannon

John S. Gannon

The action plan directs the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) that requires all employers with 100 or more employees to ensure their workers are either fully vaccinated or get tested weekly for COVID-19. Employers will also be required to provide paid time off to employees to get vaccinated and recover from any side effects from the vaccine.

The Biden administration estimates this will impact more than 80 million workers in private-sector businesses. Employers that fail to comply with the ETS will face enforcement actions from OSHA, which may include fines up to $13,653 per violation. So, if a workforce with 100 or more employees has 10 unvaccinated workers who are not testing weekly for COVID-19, the business could be looking at a fine of well over $100,000. This is no slap on the wrist.

Additionally, the president signed two executive orders requiring federal employees and federal contractors (and subcontractors) to get vaccinated, regardless of employee size. There is no weekly testing exception for these employees. Employees working on or in connection with a federal contract, including subcontractors, must be fully vaccinated by Dec. 8.

Employees who cannot get vaccinated due to a sincerely held religious belief or disability may be entitled to an accommodation from these requirements. However, it is up to the employer to determine whether medical and/or religious exceptions are legally permissible.

Unfortunately, there are a lot of unanswered questions out there. For instance, who will pay for the testing and vaccinations — the employer or the employee? And if an employee decides to opt for the weekly testing option, is the time spent traveling to and from the vaccination site considered hours worked for payroll purposes? What about the time taking the test? Under Massachusetts law, there appears to be an argument that this is, indeed, time worked for wage-and-hour purposes. Also, will employers who pay for testing be eligible for some sort of tax break if this needs to be paid time? Stay tuned, as we expect more guidance on these topics.

 

When Can Employers Expect the OSHA Standard to Be Issued?

Right now, this is anyone’s best guess. It has been about a month since President Biden announced his action plan. Assuming OSHA has been working on the ETS for a few weeks now, we anticipate it will be released sometime next month, and almost certainly before the end of 2021. Once the ETS is released, employers will likely have a short window (maybe 30 or 45 days) to get into compliance.

 

What Should Employers Do Now?

Business with employees working on federal contracts or subcontracts need to act right away if they have not started taking steps to ensure compliance. The Dec. 8 deadline for federal contractors is not that far away, and anyone who takes a vaccine that requires two shots (i.e., a Pfizer-BioNTech or Moderna COVID-19 vaccine) needs to await several weeks after the first shot to get the second. And full vaccination, regardless of whether it’s a one-dose or two-dose vaccine, is not achieved until two weeks after the final dose.

We suggest that businesses with 100 or more employees put their workforce on notice soon that the OSHA emergency standard will require everyone to get vaccinated. Businesses need to gauge how challenging compliance might be if and when the mandate goes into effect.

If your workforce population is around 80% or 90% (or higher) fully vaccinated, compliance might not be daunting. If your rates are closer to 50% or 60% (or lower), you need to start thinking about implementing the mandate soon, and planning for weekly testing options now. You also want to give employees a head start if they need to raise medical or religious objections to vaccination. Employers should have medical and religious exemption forms on file to provide to provide to employees who raise objections.

 

Legal Challenges

As mentioned above, one state has already challenged the Biden vaccination plan in a legal forum. The state of Arizona filed a lawsuit last month asking a federal court in Arizona to declare the vaccine mandates unconstitutional. The lawsuit contends that the Biden administration does not have authority under the U.S. Constitution to require vaccines.

Similar challenges to past emergency OSHA standards have had mixed results. The legal standard is high: OSHA must demonstrate that workers are in “grave danger” to justify issuing emergency temporary standards. With global COVID-19 deaths recently hitting 5 million, it seems to these authors that OSHA will be able to satisfy the ‘grave danger’ standard.

 

Marylou Fabbo and John Gannon are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield, who both specialize in employment law and regularly counsel employers on compliance with state and federal law; (413) 737-4753; [email protected]; [email protected]

A Breakdown of the American Rescue Plan Act of 2021

By Contributor
Estate Planning

Crunching the Numbers

The $1.9 trillion American Rescue Plan Act of 2021 was passed by the U.S. Congress by the narrowest of partisan margins, but its impact promises to be broad, for individuals and businesses alike. Following is a breakdown of how the act, signed into law by President Biden last month, affects everything from unemployment benefits to tax credits to employee retention.

By Jim Moran, CPA, MST

 

On March 11, President Biden signed the American Rescue Plan Act of 2021 (ARP). Biden’s $1.9 trillion COVID-19 relief package is aimed at stabilizing the economy, providing needed relief to individuals, small businesses, and improving and accelerating the administration of coronavirus vaccines and testing.

The relief package, which is Biden’s first major legislative initiative, is one of the largest in U.S. history and follows on the heels of the Trump administration’s $900 billion COVID relief package enacted in December 2020 (Consolidated Appropriations Act of 2021).

The most significant measures included in the ARP are the following:

• A third round of stimulus payments to individuals and their dependents;

• Extension of enhanced supplemental federal unemployment benefits through September 2021;

• Expansion of the child tax credit and child and dependent care credit;

• Extension of the Employee Retention Credit (ERC);

• $7.25 billion in aid to small businesses, including Paycheck Protection Program (PPP) loans;

• Increased federal subsidies for COBRA coverage;

• More than $360 billion in aid directed to states, cities, U.S. territories, and tribal governments (the Senate added $10 billion for critical infrastructure, including broadband internet, and $8.5 billion for rural hospitals);

• $160 billion earmarked for vaccine and testing programs to improve capacity and help curb the spread of COVID; this includes funds to create a national vaccine-distribution program that would offer free shots to all U.S. residents regardless of immigration status; and

• Other measures that address nutritional assistance, housing aid, and funds for schools.

Here are details on many (but not all) of the provisions of the ARP.

 

MEASURES AFFECTING INDIVIDUALS

The ARP includes several measures to help individuals who have been adversely affected by the impact of the pandemic on the economy. The additional round of stimulus checks, in conjunction with supplemental federal unemployment benefits, should provide some measure of relief to individuals. A temporarily enhanced child tax credit offers another area of assistance.

 

Cash Payments

An additional $1,400 payment is being sent for each dependent of the taxpayer, including adult dependents (such as college students and parents). The previous two stimulus payments limited the additional payments to dependent children age 16 or younger.

jim Moran

jim Moran

“The relief package, which is Biden’s first major legislative initiative, is one of the largest in U.S. history and follows on the heels of the Trump administration’s $900 billion.”

The amount of the stimulus payment is based on information in the taxpayer’s 2020 tax return if it had been filed and processed; otherwise, the 2019 return is used. The amount of the payment will not be taxable income for the recipient.

The stimulus payments are subject to certain limitations with respect to a household’s adjusted gross income. Households with adjusted gross income of more than $80,000 for single filers, $120,000 for head-of-household filers, and $160,000 for married filing jointly will not receive any payment. For taxpayers with adjusted gross incomes below those respective limitations, the stimulus is subject to a phaseout beginning at $75,000 for single filers, $112,500 for heads of household, and $150,000 for married filing jointly.

 

Extended Unemployment Benefits

The current weekly federal unemployment benefit of $300 (which applies in addition to any state unemployment benefits) is extended through Sept. 6, 2021; the Senate cut back the $400 that would have applied through Aug. 29 under the House version. The extension also covers the self-employed and individual contractors (such as gig workers) who typically are not entitled to unemployment benefits.

Additionally, the first $10,200 (per person if married filed jointly) of unemployment insurance received in 2020 would be non-taxable income for workers in households with income up to $150,000. If you have already filed your 2020 federal taxes (Form 1040 or 1040-SR), there is no need to file an amended return to figure the amount of unemployment compensation to exclude. The IRS will refigure your taxes using the excluded unemployment compensation amount and adjust your account accordingly. The IRS will send any refund amount directly to you.

 

Child Tax Credit

The child tax credit will be expanded considerably for 2021 to help low- and middle-income taxpayers (many of the same individuals who will be eligible for stimulus payments), and the credit will be refundable.

The amount of the credit will increase from the current $2,000 (for children under 17) to $3,000 per eligible child ($3,600 for a child under age six), and the $3,000 will also be available for children who are 17 years old. The increase in the maximum amount will phase out for heads of households earning $112,500 ($150,000 for couples).

Because the enhanced child tax credit will be fully refundable, eligible taxpayers will receive a refund for any credit amount not used to offset the individual’s federal income-tax liability. Part of the credit will be paid in advance by the IRS during the period July through December 2021 so that taxpayers do not have to wait until they file their tax returns for 2021. The IRS will publish future guidance as to how the payments will be refunded.

 

Child and Dependent Care Tax Credit

The child and dependent care tax credit will be expanded for 2021 to cover up to 50% of qualifying childcare expenses up to $4,000 for one child and $8,000 for two or more children for 2021 (currently, the credit is up to 35% of $3,000 for one child or 35% of $6,000 for two or more children). The credit will be refundable so that families with a low tax liability will be able to benefit; the refund will be fully available to families earning less than $125,000 and partially available for those earning between $125,000 and $400,000.

 

Earned Income Tax Credit (EITC)

The EITC will be expanded for 2021 to ensure it is available to low-paid workers who do not have any children in the home. The maximum credit will increase from about $530 to about $1,500, and the income cap to qualify for the EITC will go from about $16,000 to about $21,000. Further, the EITC will be available to individuals age 19-24 who are not full-time students, as well as those over 65.

 

MEASURES AFFECTING BUSINESSES

The ARP also contains provisions designed to assist businesses — small businesses in particular.

 

Small Businesses and Paycheck Protection Program

An additional $7.25 billion is allocated to assist small businesses and the PPP forgiven loans. The current eligibility rules remain unchanged for small businesses wishing to participate in the PPP, although there is a provision that will make more nonprofit organizations eligible for a PPP loan if certain requirements are met.

The PPP — which was originally created as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act enacted on March 27, 2020 — is designed to help small businesses that have suffered from disruptions and shutdowns related to the coronavirus pandemic and keep them operational by granting federally guaranteed loans to be used to retain staff at pre-COVID levels. A PPP loan may be forgiven in whole or in part if certain requirements are met.

The Economic Aid Act, which is part of the CAA, earmarked an additional $284 billion for PPP loans, with specific set-asides for eligible borrowers with no more than 10 employees or for loans of $250,000 or less to eligible borrowers in low- or moderate-income neighborhoods. The program has recently been extended from March 31, 2021 to May 31, 2021.

 

Employee Retention Credit (ERC)

The ERC, originally introduced under the CARES Act and enhanced under the CAA, aims to encourage employers (including tax-exempt entities) to keep employees on their payroll and continue providing health benefits during the COVID pandemic. The ERC is a refundable payroll-tax credit for wages paid and health coverage provided by an employer whose operations were either fully or partially suspended due to a COVID-related governmental order or that experienced a significant reduction in gross receipts.

The CAA extended the eligibility period of the ERC to June 30, 2021, increased the ERC rate from 50% to 70% of qualified wages, and increased the limit on per-employee wages from $10,000 for the year to $10,000 per quarter ($50,000 per quarter for startup businesses). The ARP also extends the ERC until Dec. 31, 2021 under the same terms as provided in the CAA.

 

 

Other Measures

• Employers offering COVID-related paid medical leave to their employees will be eligible for an expanded tax credit through Sept. 30, 2021.

• The ARP increases the proposed subsidies of insurance premiums for individual workers eligible for COBRA, after they were laid off or had their hours reduced, to 100% through Sept. 30, 2021.

• Funds are allocated for targeted Economic Injury Disaster Loan advance payments, as well as for particularly hard-hit industries such as restaurants, bars, and other eligible food and drink providers, shuttered venue operators, and the airline industry.

• Effective for taxable years beginning after Dec. 20, 2020, the ARP repeals IRC section 864(f), which allows U.S.-affiliated groups to elect to allocate interest on a worldwide basis. This provision was enacted as part of the American Jobs Creation Act of 2004 and has been deferred several times. The provision is relevant in computing the foreign tax-credit limitation under IRC section 904.

• The ARP does not cancel student-loan debt, but there is a provision that would make student loan forgiveness passed between Dec. 31, 2020 and Jan. 1, 2026 tax-free (normally, the cancellation of debt is considered taxable income).

• A deduction will be disallowed for compensation that exceeds $1 million for the highest-paid employees (such as the CEO, CFO, etc.) for taxable years beginning after Dec. 31, 2026.

• The limitation on excess business losses of non-corporate taxpayers enacted as part of the Tax Cuts and Jobs Act will be extended by one year through 2026.

• The threshold for third-party payment processors to report information to the IRS is lowered substantially. Specifically, IRC section 6050W(e) is revised so that the current threshold of $200,000 for at least 200 transactions is reduced to $600. As a result, such payment processors will have to provide a Form 1099K to sellers for whom they have processed more than $600 (regardless of the number of transactions). This change, which applies to tax returns for calendar years beginning after Dec. 31, 2021, will bring many more sellers, including ‘casual’ sellers, within the 1099K reporting net.

If you have questions about any of the items above, reach out to your tax professional, who will be able to navigate you through any portion of the American Rescue Plan Act and how it may affect you.

 

Jim Moran, CPA, MST is a tax manager at Melanson, advising clients on individual and corporate tax matters; [email protected]

What Will a Biden Administration Mean for Workplace Safety?

By Contributor
Insurance

Premium Concerns

By Mike Horan

Insurance costs have already been rising — the property and casualty space has seen 11% rate increases annually, on average — due to uncertainty around pandemic losses, catastrophic natural-disaster claims, a lack of capacity in the reinsurance market, low interest rates, and increased size of claims due to social inflation.

Now, just a couple weeks into Joe Biden’s presidency, we are asking ourselves: how will the incoming administration impact businesses like yours, and, consequently, the insurance marketplace and your premiums?

With the inauguration of Biden on Jan. 20, we expect a return to a highly pro-union, pro-workers’-rights administration similar to what we saw under President Obama (and Vice President Biden) from 2009 to 2017. This could very well come with a change of leadership at the Occupational Safety and Health Administration (OSHA). The current acting administrator, Loren Sweatt, has been in the role as an interim since 2017, and experts anticipate a changing of the guard.

“To prepare for the incoming administration and the changes that will accompany it, we encourage you to prioritize your safety practices. OSHA will be examining this much more closely, and so will the insurance companies.”

Most importantly for your business, you can count on a shift back to heavier enforcement of OSHA workplace violations. During his campaign for the presidency, Biden called on OSHA to “double the number of OSHA investigators to enforce the law and existing standards and guidelines.” Based on this, we expect more inspectors visiting businesses to ensure compliance, and heavier fines for infractions. We also anticipate a return to practices such as issuing press releases publicly naming companies that have been fined for workplace-safety violations, in an effort to discourage other businesses from making the same mistakes.

At Webber and Grinnell, we place heavy emphasis on loss control and creating a culture of safety within our clients’ operations. This is not just because we care about doing the right thing and keeping everyone safe (although that is certainly the primary reason). It’s also because we know that insurance companies are scrutinizing safety and losses more than ever due to the aforementioned facts about rising costs in the marketplace. They are rewarding safe companies and penalizing unsafe companies. One of the primary resources they use to make these decisions is OSHA records, so it is absolutely essential that you adhere to OSHA’s policies and guidelines.

To prepare for the incoming administration and the changes that will accompany it, we encourage you to prioritize your safety practices. OSHA will be examining this much more closely, and so will the insurance companies.

You need to be a step ahead by doing everything you can to create a culture of safety. Long-term benefits include fewer injuries, less downtime, lower insurance costs, better employee morale, and a work culture that will attract the best talent.

 

Mike Horan is a business insurance specialist and RiSC consultant at Webber and Grinnell Insurance.

 

What Biden’s Presidency May Bring

By Contributor
Opinion

Opinion

By John Regan

Joe Biden, set to become the 46th president of the U.S., will take office at a singular moment in the history of a nation struggling to confront the convergence of a pandemic, an economic crisis, and social upheaval.

It’s also a singular moment for Massachusetts employers. The change of administrations in Washington will have enormous consequences for employers on everything from federal stimulus to the tenor of labor relations.

Record numbers of voters cast ballots either in person, by absentee ballot, or through the mail in an election conducted amid a second surge of COVID-19 cases around the country. It was an election marked by stark polarization on the issues, a backlash against globalization, the growing influence of technology, and cultural and social struggles.

The new administration and Congress will set the nation’s economic agenda for the next two to four years. Biden’s ability to implement his economic plans will ultimately be determined by two runoff elections in Georgia that will determine which party controls the U.S. Senate.

The issues for employers will range from taxes to business regulation. The most immediate concern for Massachusetts companies and for the Commonwealth itself is the prospect that a Biden administration could break the logjam over a new economic-recovery package as a follow-up to the CARES Act passed in March. Such a package could reopen the door to the popular Paycheck Protection Program for employers and provide financial support to the state as it seeks to close a project budget shortfall of $3 billion to $6 billion.

Biden’s ability to implement his economic plans will ultimately be determined by two runoff elections in Georgia that will determine which party controls the U.S. Senate.

It is also anticipated that the new administration will initiate a more aggressive federal approach to moderating the COVID-19 pandemic than that taken by the Trump administration. Federal regulations such as a mask mandate and broad health protocols will affect Massachusetts companies that do business in multiple states.

President-elect Biden has proposed raising taxes on corporations and imposing a corporate minimum book tax. He would also increase taxes on individuals with income above $400,000, including raising individual income, capital gains, and payroll taxes.

Most observers expect regulation of business to become more aggressive in areas such as occupational safety, union activity, and environmental compliance. The development of wind energy, including proposed projects just south of Martha’s Vineyard, is likely to accelerate after several years of slowdowns.

U.S. financial markets are likely to be affected. The stock market generally produces below-average returns during the first two years of a presidency and strong returns during in the second two years as investors gain confidence in the predictability and certainty of an administration.

The nation’s approach to international trade, which was marked by aggressive imposition of tariffs by the Trump administration, may also change under a Biden administration. While the president-elect has refrained from releasing any detailed policy proposals on trade, he has emphasized the importance of training the U.S. workforce for a competitive global environment, a renewed commitment to reducing trade barriers, and a coordinated approach to negotiations with China that utilizes U.S. allies and international institutions.

AIM members should be assured that the association remains committed to representing your best interests whatever direction the political winds might shift. v

 

John Regan is president and CEO of Associated Industries of Massachusetts.

Biden Administration Will Create a More Employee-friendly Landscape

By Contributor
Law

An Employment-law Forecast

By Andrew J. Adams, Esq.

On the heels of a fiercely contested election, President-elect Joe Biden has started his transition work, and has laid out plans that have the potential to affect business owners nationwide.

As expected, many these changes lean in favor of the employee as opposed to the employer. However, some plans should assist small businesses. While it’s difficult to predict the future, we can make some solid projections about what employers can expect from the Biden administration.

 

Workplace Safety and OSHA

Andrew J. Adams

Andrew J. Adams

The most immediate effect upon employers is likely to be a push by the Biden administration to enact emergency standards requiring employers to develop workplace-safety plans in reaction to the COVID-19 pandemic. Under the current administration, the Occupational Safety and Health Administration (OSHA) performed the lowest number of inspections in the history of the agency and reduced the number of inspectors on staff to the lowest level in the past 40 years.

Biden will immediately address these policies, leading to increased inspections and enforcement, as was the case under the Obama administration. This means employers will likely face harsher penalties for non-compliance and more substantial fines than they have over the past four years.

Employers are also likely to encounter the return of the Obama administration’s workplace-safety reporting rule. This would require certain employers to report illness and injury information to OSHA, which will then be maintained online as publicly available information.

 

Wage-and-hour Law

President-elect Biden’s campaign has stated he will seek to address wage inequalities between black and white workers, make it easier for workers to pursue claims of discrimination, and push for a higher minimum wage. The administration would increase the funding allotted to the Equal Employment Opportunity Commission, the federal agency tasked with enforcing employment-discrimination laws.

“The most immediate effect upon employers is likely to be a push by the Biden administration to enact emergency standards requiring employers to develop workplace-safety plans in reaction to the COVID-19 pandemic.”

In what is likely to be an immediate change, Biden is expected to rescind President Trump’s executive order banning training for federal agencies and contractors that contained “offensive and anti-American race and sex stereotyping and scapegoating.” The executive order banned training on several topics and recommended keyword searches for terms such as “white privilege,” “systemic racism,” and “unconscious bias” to identify if trainings were inappropriate under the order.

Employers can also expect a push at the federal level for a $15 minimum wage; during his campaign, Biden called for an increase to a $15 minimum wage by 2026. Another likely outcome is an increase in enforcement and compliance actions against employers for wage-and-hour violations, alongside enhanced penalties.

In a follow-up to the first piece of legislation enacted by the Obama-Biden administration (the Lilly Ledbetter Fair Pay Act), Biden will also prioritize ending paycheck discrimination, evidenced by his strong support of the Paycheck Fairness Act, which would amend federal equal-pay laws to require “a bona fide factor other than sex, such as education, training, or experience” in awarding different pay to men or women doing the same or similar work; protect workers from retaliation for discussing wages; and ban the use of salary history in the hiring process.

As an aside, Biden also supports federal legislation that would provide 12 weeks of paid leave for employees for their own or a family member’s serious health condition.

 

Small Businesses

Biden plans to restructure the existing Paycheck Protection Program by adding oversight and an approval guarantee for eligible businesses with 50 or fewer employees. The plan also calls for measures to increase small-business access to capital through an initiative called the Small Business Opportunity Fund.

 

Immigration

The president-elect has proposed a 180-degree turn from the current administration’s policies when it comes to immigration. The Biden plan would call for easing legal immigration into the U.S., including a pathway to citizenship for the large number of immigrants in the U.S. who lack legal permanent status, as well as some of those currently working illegally. Biden also proposes eliminating country-based caps on immigration and increasing the number of employment-based visas awarded each year, such as the H-1B, although those may come with stricter regulation.

 

Workplace Discrimination and Harassment

Biden supports the federal Pregnant Workers Fairness Act (PWFA), which was passed by the House in September, but has yet to be approved by the Senate. Under the PWFA, employers would be required to reasonably accommodate pregnant workers and employees with pregnancy-related conditions and would prohibit them from (1) requiring a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process; (2) denying employment opportunities to a qualified employee for the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee; (3) requiring a qualified employee to take paid or unpaid leave if another reasonable accommodation can be provided; and (4) taking adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation.

The Biden-Harris agenda also includes support of the BE HEARD (Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace) Act, which would establish a national harassment-prevention task force and includes several mandates for covered employers, including mandatory non-discrimination training and limitations on the use of non-disclosure and non-disparagement clauses in settlement agreements.

 

Federal Agencies

Employers will likely see a return to the pro-labor days of the Obama administration’s National Labor Relations Board, which is the agency that enforces U.S. labor law in relation to collective bargaining and suspected unfair labor practices. President-elect Biden will take office and have the ability to shift the board to Democratic control within the first year of his taking office.

In addition, the administration has affirmed a strong support for the Protecting the Right to Organize (PRO) Act, a substantial piece of legislation that would provide sweeping reforms, including the imposition of substantial financial penalties on companies that violate labor laws. The Biden-Harris campaign page also promises to “go beyond the PRO Act by enacting legislation to impose even stiffer penalties on corporations and to hold company executives personally liable when they interfere with organizing efforts, including criminally liable when their interference is intentional.”

All in all, employers should be ready for much more employee-friendly changes over the course of the next four (or eight) years.

 

Andrew Adams is an attorney at the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]

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