The inauguration of Joe Biden this week as 45th president of the United States marks the beginning of a dramatic change in trajectory in employment law. While the previous administration has pursued a pro-employer agenda, Biden, who has said that he wants to be the most pro-union president in history, plans to take an aggressive approach to protecting employees in the workplace. Here are some areas to watch in 2021.
The Biden administration has committed to supporting measures that address pay disparity, including a pledge to sign the Paycheck Fairness Act. The act requires that pay differences be based on objective factors such as education, training, or experience. Companies must file reports with the Equal Employment Opportunity Commission (EEOC) that correlate compensation data with employees’ race, sex, and national origin. The act also prevents employers from restricting employee discussion of wage information.
President-elect Biden has stated that he hopes to sign the Equality Act, which prevents discrimination in employment, housing, education, and public accommodation on the basis of sexual orientation and gender identity, in his first 100 days in office. The administration plans to reinstate many Obama-era guidelines that protect the LGBTQ community, in the workplace, including ending the transgender military ban. In addition, Biden has expressed support for expanded protection for pregnant, senior, and disabled employees.
Wages and overtime
The results of the Georgia Senate runoff election open the way for a new push for the Raise the Wage Act that the House of Representatives passed in 2019. The act increases the federal minimum wage to $15 per hour over a six-year period. The bill also phases out the reduced minimum wage currently allowed for certain employees who receive tips.
The Department of Labor under the Biden administration is expected to increase the minimum salary for most employees exempt from overtime to as much as $47,000, while modifying the duties tests for executive, administrative, and professional exemptions. Such legislation may be similar to a 2016 rule under the Obama administration which was declared invalid by a Texas court before implementation.
President-elect Biden supports the expansion of paid leave for employees in the public and private sectors. While legislation may face resistance in Congress, the administration will likely press for 12 weeks of paid leave for many events that currently qualify for unpaid leave under the Family and Medical Leave Act.
Pro-worker legislation may include the Protecting the Right to Organize Act (PRO Act), which passed the House in 2020 but stalled in the Senate. The legislation enhances the ability of unions to organize by, among other things, imposing financial penalties against employers that interfere with union organizing efforts. The act also prohibits right to work laws, allows employees to sue employers in federal court over unfair labor practices, and bars employers from permanently replacing strikers.
The National Labor Relations Board has five members appointed by the president for five-year terms. The board currently has one vacancy but will have a Trump-appointed majority until August 2021. General Counsel Peter Robb, who prosecutes NLRB cases and decides which cases have merit, is also a Trump appointee, set to retire in November 2021. Once Biden appointments are in place, look for a number of reversals of Trump-era NLRB decisions.
The immediate priority of President-elect Biden is defeat of the COVID-19 pandemic. The administration is expected to put pressure on the Occupational Safety and Health Administration (OSHA) to more rigorously investigate and penalize COVID-related workplace violations. Unless the COVID-19 vaccines mitigate much of the risk of the virus, Biden may call for OSHA to issue COVID-specific health and safety standards.
Other employment-related changes are certain in the coming year, some which will require timely compliance from your company. A consultation with your employment attorney will help you prepare and avoid potential disruptions in the workplace. As always, we are happy to help.