9 Potential Labor & Employment Priorities for the Biden Administration

As the new Biden Administration begins, employers can expect revisions in Department of Labor regulations and the legislative agenda. Mr. Biden’s stated policy preferences and nomination of Boston Mayor Marty Walsh, a long-time Union executive, for Secretary of Labor, signal a preview of what employment-related legislative initiatives employers can expect. At Nyemaster Goode’s beginning-of-the-year Labor & Employment client webinar, attorney Tom Cunningham summarized several of the priority issues likely to affect employers.

• Expanded Families First Coronavirus Relief Act tax credits. “Congress extended the FFCRA tax credits but not the mandate, for now,” Cunningham says. “With the Democrats in control of Congress, and especially if new COVID lockdowns are implemented in more states, it’s quite possible there will be a renewal of the FFCRA mandate through 2021, which may include expanded coverage and benefits, similar to what the House proposed earlier last year in the Heroes Act.”
  
  
  
• Mandated paid leave. “The FFCRA was in part a test run for requiring employers to provide certain paid leave benefits. One of the priorities of the incoming administration is to take a look at making all categories of FMLA leave mandatory and paid,” he says. “They’re also going to look at a federal paid sick leave requirement for non-federal contractor employers, similar to emergency paid sick leave under the FFCRA. Many employers who are federal contractors have been required to provide paid sick leave under certain circumstances since 2017.”
  
  
  
• Joint employer and independent contractor rules. Employers can expect a potential review of the Department of Labor’s regulations regarding what constitutes a joint employer. “The Trump Department of Labor implemented a new independent contractor-friendly rule” Cunningham says. “We’ll see whether that survives; the new Administration has several avenues with which to potentially block the regulation before it takes effect on March 8.”
  
  
  
• Wage-Hour Division opinion letters. “The Obama Administration discontinued the practice of the Department of Labor Wage-Hour Division issuing opinion letters,” Cunningham says. “The Trump Administration reinstituted that practice. We’ll have to see whether that continues under Secretary of Labor-designate Walsh.”
  
  
  
• Federal minimum wage and exempt salary level threshold. Cunningham expects the Biden Administration to revisit raising the federal minimum wage, as well as the salary level threshold for exempt employees under the Fair Labor Standards Act. “The Obama Administration promulgated a rule that raised the annual salary level threshold to $47,476,” he says. “That was enjoined and never went into effect. The Trump Administration promulgated and passed a regulation that raised the annual salary level threshold to $35,568. That is where it is now. There may be another round of rule-making.”
  
  
  
• Pregnant Workers Fairness Act. This legislation amends Title VII of the Civil Rights Act. It clarifies protections for pregnant workers and requires employers to provide reasonable accommodations—such as more frequent restroom breaks—to those employees. It also prohibits imposing any accommodation on a pregnant worker that is not the product of an interactive process. The bill passed the House by a vote of 329-73 (including 103 Republican votes) in September 2020. “The Pregnant Workers Fairness Act has a great amount of support in the business community,” Cunningham says. “I would expect this law to be easily passed.”
  
  
  
• Paycheck Fairness Act. The legislation amends the Equal Pay Act of 1963 in several respects. “The amendments are intended, among other things, to help resolve the problem of how pay history may have been used to justify pay disparities among men and women,” Cunningham says.
  
  
  
• OSHA and workplace safety. The Trump Administration functioned for four years without an assistant secretary in charge of OSHA. “You can expect, I think, some immediate action in this area,” Cunningham says. “OSHA has been subject to great criticism in the press about not having any COVID-19-specific emergency procedures.” He also expects a return to a much more aggressive “regulation by shaming” campaign through the use of press releases, especially for COVID-19 and workplace safety-related complaints.
  
  
• Protecting the Right to Organize (PRO) Act. “Many commentators have called this act Organized Labor’s ‘wish list’ of legislation,” Cunningham says. Passed by the House in early 2020, the PRO Act was dead on arrival in the Senate at that time. “I fully expect this will be a priority for the president, vice president, and incoming Secretary of Labor,” he says. “Basically, the goal of this legislation is to spur greater unionization of the American workplace and dismantle or weaken many of the legal tools available to management to resist union organizing.”  Read more about the PRO Act here.