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
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.
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.
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.
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.
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.