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New Year's Resolutions from the Biden Administration

HAPPY NEW YEAR! We hope that you had a safe and happy end to 2020. We remain thankful for our client relationships and are ready to help with your legal matters in the new year.

With only 12 days until the inauguration of President-elect Biden and the legislative work of the 117th Congress, we are focused on the first 100 days of the new administration. Here are some predictions about what to expect in the labor and employment space:

• The Filibuster Will Shift Biden’s Focus to Executive Orders

The legislative filibuster generally means that Democrats will need at least 60 supporting votes to pass any legislation in the Senate. Prior to the election, there was talk of eliminating the filibuster, but the filibuster is probably here to stay. Legislation takes time, particularly when bipartisan support is needed. Therefore, if President-elect Biden wants to make immediate changes, he can rely on the avenues he can control, namely executive orders and the agencies under the executive branch.
Political watchers predict President-elect Biden will reverse course on many of President Trump’s executive orders, including his Executive Order on Combating Race and Sex Stereotyping. This order prevented federal contractors from conducting diversity and inclusion training that included certain concepts and language that the Trump Administration found objectionable. Instead, the Biden Administration may revive executive orders from President Obama that specifically prohibited sexual orientation and gender identity discrimination.

• Executive Order Mandating Masks

President-elect Biden announced that, on his first day in office, he will sign an executive order mandating masks for the first 100 days of his presidency. He will not have the authority to mandate masks in all spaces, but it will be far reaching, covering areas such as federal buildings and places of interstate travel such as planes, trains, and buses.

• COVID-19 Legislation

President-elect Biden recently promised that he would support the $2,000 direct stimulus checks if Democrats took majority control of the Senate. He also voiced support for widespread access to paid sick leave by supporting an emergency paid leave program that would expand the Families First Coronavirus Response Act (FFCRA) to require fourteen days of paid leave up to $1,400 per week for those who are sick, exposed, or subject to quarantine. President-elect Biden’s plan would also expand the FFCRA’s coverage to domestic workers, caregivers, gig economy workers, and independent contractors. Given President-elect Biden’s recent support for the direct stimulus payments, it is more likely that he will focus on that legislation rather than the sweeping expansion of the FFCRA for which he has called. However, President-elect Biden could push for a resurrection of the FFCRA, which was not renewed after its expiration at the end of 2020.

• A Seismic Shift in the Department of Labor’s Wage and Hour Division

The division will undoubtedly revisit the joint-employer and independent contractor rules issued under the Trump Administration. In fact, the Biden Administration may simply withdraw the new independent contractor regulations finalized this week before they become effective. It is also expected to review the overtime standards, including the salary level required for white-collar exemptions, tipped employee standards, and issues such as off-the-clock work for actions such as checking email during non-work hours. Expect an uptick in enforcement, particularly in blue-collar industries such as construction and food and beverage. The department may also stop issuing opinion letters and instead return to the Obama-era practice of issuing administrator interpretations.

• A More Aggressive Occupational Safety and Health Administration (OSHA)

President-elect Biden has promised to increase the number of OSHA investigators to improve oversight, which is consistent with the expectation that OSHA will focus more on enforcement and recordkeeping and less on voluntary compliance. Employers can expect the new leadership at OSHA and the U.S. Centers for Disease Control and Prevention (CDC) to consider releasing mandatory health and safety standards related to COVID-19, but those may take a while to come to fruition.

• Delayed Support for Unions

The National Labor Relations Board (NLRB) is currently comprised of three Republican members, one Democrat, and a vacancy. The Biden Administration will likely fill the vacancy immediately but will be unable to create a Democrat majority until one of President Trump’s appointee’s term expires in August 2021. Equally as important, the term of the current NLRB General Counsel will not expire until November 2021. Thus, while President-elect Biden has made his support for unions clear, major changes at the NLRB will not occur until the end of 2021. In the interim, President-elect Biden could support unions’ interests by issuing executive orders that require federal government contractors to disclose federal labor law violations and adhere to other requirements that favor unions.

• Banning Noncompete and No-Poach Clauses

President-elect Biden has voiced support for federal legislation that bans no-poach agreements and eliminates almost all non-compete agreements “except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.” It is unclear how likely passage of such sweeping legislation would be in an area currently exclusively controlled by state law. Just as unclear is what such legislation would look like and whether it will also ban or limit non-solicit or non-disclosure provisions. If Congress is unable to pass legislation in this area, President-elect Biden will likely issue executive orders or urge federal agencies such as the Federal Trade Commission or Department of Justice to issue regulations in these areas.

As President-elect Biden’s term proceeds, we will provide updates. If you have any questions or would like to discuss the above in greater detail, please contact us because this general summary does not constitute legal advice about any particular situation.

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