The Law @ Work

What Can Employers Expect from a Joe Biden Presidency?

By Amelia J. Holstrom

As we say goodbye to 2020 (good riddance!) and begin the New Year, employers are starting to ask: what will a Joe Biden presidency mean for us?

President-Elect Joe Biden has started his transition planning and has laid out plans that have the potential to affect business owners, not just in Massachusetts, but nationwide. Not surprisingly, many of the planned (and rumored) changes favor employees, rather than businesses.

Here is what we know so far.

Will OSHA Take an Even Stronger Stance on Workplace Safety? 

Under the Trump administration, OSHA performed the fewest inspections in the entire history of the agency and reduced the number of inspectors on staff to the lowest level in the last 40 years. It is very likely that President-Elect Biden will waste no time in increasing 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 in the last 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. 

But, wait, there is more. Congressional Democrats have been requesting that the Trump Administration implement a nationwide COVID-19 worker protection rule. President-Elect Biden has been critical of the administration’s failure to do so and has indicated that he will issue an emergency standard after January 20. 

Under the Occupational Safety and Health Act, OSHA could issue a temporary rule without employer input or public comment so long as it can show that it is necessary and employees are being exposed to “grave danger.” OSHA must then make a temporary rule permanent within a certain period of time and must follow the lengthier rule-making process which includes the opportunity for public comment. But, in reality, if the Biden Administration acts quickly, a temporary rule might be in place by February.

Are Non-Competes on the Chopping Block?

While we were all rushing to get ready for the holidays, President-Elect Biden released “The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions.” In the plan, President-Elect Biden proposed to eliminate non-compete clauses entirely. It’s true that some non-competition agreements are unfairly used; however, a complete ban would pose many challenges for employers. While employers are still reeling from significant non-compete reform in Massachusetts (you can read about that on our blog here), businesses might be faced with additional restrictions on the use of non-competition agreements in the next four (or maybe eight) years if Biden has his way. For what it is worth, nationwide legislation banning non-competes has been proposed and failed before. It may or may not get traction.

What about the NLRB?

In “The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions,” President-Elect Biden states that he will “encourage and incentivize unionization and collective bargaining.” As a result, it should come as no surprise that employers should expect a return to the pro-labor days of the Obama administration’s National Labor Relations Board (NLRB). As President, Biden will have the ability to nominate individuals to the NLRB and shift the board to Democratic control. This could happen within the first year of his taking office.

Notably, President-Elect Biden’s Plan states that he will work to reinstate and codify into law the Obama-era “Persuader Rule,” which required employers (both union and non-union) to publicly report when they use consultants (including lawyers) for labor relations advice given for the purpose of persuading employees not to unionize. (You can read about that rule here on our blog.) The rule was blocked by a court in November 2016 (you can read about that on our blog here) and the Trump Administration did not file an appeal, but it looks like it might resurface again soon. 

The Biden-Harris Administration also supports legislation that would allow for shortened timelines for union election campaigns, such as the Obama-era “Quickie Election Rule,” which shortened the time period from the filing of the union’s petition to the election. Many would agree that the shortened process disadvantaged both employers and employees to the advantage of unions. Under the rule, employers had less time to educate employees about the disadvantages of union representation and to train supervisors on how to respond lawfully to the union’s organizing campaign. The Trump Administration abandoned the rule, but if that rule or something like it is enacted, employers could be disadvantaged once again when it comes to union elections. (You can read more about the Obama-era Rule on our blog here and my BusinessWest article here).

Additionally, the Biden Administration has affirmed strong support for the Protecting the Right to Organize Act (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 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.”   

How Will Employees’ Rights under Wage and Hour Law & Workplace Discrimination and Harassment be Increased?

President-Elect Biden’s campaign has stated that 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 an increased federal minimum wage to $15 per hour.

Additionally, President-Elect Biden proposes to “aggressively pursue employers who violate labor laws, participate in wage theft, or cheat on their taxes by intentionally misclassifying employees as independent contractors.” Biden has indicated that the U.S. Department of Labor will work with the NLRB, Equal Employment Opportunity Commission (EEOC), Internal Revenue Service (IRS), and other labor agencies to investigate, and that he will fund a “dramatic increase in the number of investigators in labor and employment enforcement agencies to facilitate a large anti-misclassification effort.” As a result, employers should anticipate additional enforcement tactics and strict penalties for non-compliance.

The Biden-Harris agenda includes support of the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act (BE HEARD Act). The BE HEARD Act 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 nondisclosure and non-disparagement clauses in settlement agreements. 

Bottom Line

With Biden as President, many of the changes businesses are likely to see should not be completely foreign as they reflect a re-dedication to Obama-era principles. We cannot predict what changes will impact employers as the President cannot act on his own, and for many of his initiatives, he will need the support of Congress. Regardless, over the next four (or maybe eight) years, employers are certain to be impacted by significant changes to labor and employment laws. Our attorneys will keep you apprised of any significant updates right here on our Law @ Work blog as well as our Unions @ Work and Immigration @ Work blogs. If you do not already subscribe to our blogs and would like to do so, you can do that here.

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