The champagne was still flowing in the Alabama locker room on Monday night following their thumping of Ohio State in the College Football National Championship Game when sports media outlets began to publish their “Way Too Early” Top 25 polls for next season. It is a stark reminder that it is never too soon to look ahead. As the country gets set to swear in a new president next week, it is the perfect time to make some “pre-season” predictions about the changes the incoming administration might make to the labor and employment landscape.
President-elect Joe Biden has been clear about his intentions to make significant changes to federal labor and employment law. While there is no guarantee that Biden will be able to push through all of his desired legislative and regulatory objectives, he will have favorable conditions when he arrives in Washington, DC. He will have a solidly Democratic lower chamber in Congress, and thanks to the Georgia runoff elections held on January 6, he will also have a hair thin advantage in an evenly split Senate (with Vice President-elect Kamala Harris casting tiebreaking votes).
Below are some of the policy goals that Biden has indicated he would like to pursue once in office. Nothing is set in stone just yet, but employers should keep their ears open so they are not caught off guard by what is promising to be some pretty big changes to labor and employment law.
Arbitration and Non-Competition Agreements
In September 2019, the Democrat-controlled House of Representatives passed the Forced Arbitration Injustice Repeal Act (FAIR). Biden has recently expressed support for this bill. The bill would prevent employers from requiring employees and prospective employees to sign pre-dispute arbitration agreements as a condition of employment.
Biden has also indicated that he will support a restriction on the use of non-competition clauses by employers to those “that are absolutely necessary to protect a narrowly defined category of trade secrets.” Biden also supports imposing a ban on no-poaching agreements.
Biden will likely revoke President Trump’s Executive Order on Combating Race and Sex Stereotyping, which prohibited federal government agencies and federal contractors from administering certain kinds of diversity training.
Biden is expected to make work visas easier to obtain and remove work visa caps for STEM graduates.
President Trump’s Department of Labor (“DOL”) has tried to fast-track a new independent contractor rule that would make it easier for businesses to classify workers as independent contractors. If the rule is enacted before January 20 (which seems unlikely), the Biden administration will likely replace it through the rulemaking process. If Trump’s DOL is unable to push the new rule through before January 20, Biden’s DOL will likely withdraw it.
On the legislative front, Biden has proposed changes that mirror a law recently passed in California, which makes it more difficult for businesses to classify certain workers as independent contractors. Biden has also called for stricter enforcement of existing laws against misclassification.
As recently as January 8, Biden expressed support for an increase in the federal minimum wage to $15 per hour, stating that he hopes “Democratic control of the House and Senate will raise the odds of prompt action on increasing the minimum wage.” Biden has also called for an end to the tip credit, which would eliminate employers’ ability to pay tipped employees a reduced minimum wage.
The Biden campaign has stated that Biden supports the Protecting the Right to Organize Act. The Act would strengthen labor laws protecting unions by allowing charges of unfair labor practices to be brought in civil court, ban all state right-to-work laws, increase the amount of damages the National Labor Relations Board is authorized to award, and require binding arbitration between unions and employers for two years when negotiating a first contract, among other changes.
The make-up of the NLRB will likely not undergo substantial realignment until the end of 2021. There are currently three Republican appointees and one Democratic appointee. There is one current vacancy that President-elect Biden will be able to fill immediately, subject to Senate confirmation. However, a Republican-held seat will not open up until November 2021, providing President-elect Biden with his earliest opportunity to bring the NLRB under Democratic control.