10 Ways the Biden Presidency Could Affect Employers
Author: XpertHR Editorial Team
There is no question the election of Joe Biden as the nation's 46th president will have a big impact on employers. While the impact would have been much more extensive had Democrats taken control of the Senate (Republicans currently appear likely to have a 50-48 advantage, pending the outcome of the two Senate races in Georgia headed for January runoffs), this new administration will bring a host of significant changes.
For instance, even without Senate control, President-elect Biden will undoubtedly reverse many of President Trump's executive orders affecting the workplace, including those suspending new work visas, cracking down on labor unions and others.
Also, as in all administrations, the new president will have the ability during his term to reshape the National Labor Relations Board (NLRB), the Department of Labor (DOL) and other government agencies. Here are areas where developments are likely or at least bear watching:
1. Reinstate DACA
President-elect Biden has pledged to make the Deferred Action for Childhood Arrivals (DACA) program permanent by signing an executive order immediately after taking office. Biden championed the creation and expansion of DACA while vice president.
DACA protects an estimated 700,000 people brought to the US illegally as children from deportation by providing renewable two-year work permits to enable them to remain in the country. Thousands of DACA recipients nationwide have been considered essential workers during the coronavirus pandemic.
The Trump administration had long viewed DACA as illegal, claiming it facilitates immigration law violations by providing affirmative benefits like work authorizations and Social Security benefits. In June, the Supreme Court upheld DACA, but left the door open for future legal challenges. However, many employer groups will welcome President-elect Biden's plan to issue an executive order reversing the Trump administration's immigration policies.
"Stripping DACA recipients of their ability to legally live and work in the country will harm their employers, their families, and their communities," said the US Chamber of Commerce's Policy Officer. Many Fortune 500 companies have also called for permanent protections for these workers.
2. Increase High-Skilled Work Visas
The Biden administration also plans to seek to expand the number of high-skilled work visas available. In addition, the new president is likely to eliminate the limit on employment-based visas by country.
President Trump had signed an executive order blocking work visas through the end of 2020 for hundreds of thousands of foreign workers seeking jobs in the US, citing disruptions caused by the coronavirus (COVID-19). The order has been challenged in the courts, but the Trump administration had announced new restrictions on the H1-B nonimmigrant visa program in October.
Many business leaders criticized the restrictions, claiming they would block their ability to recruit needed workers from overseas, particularly skilled workers. "Putting up a 'not welcome' sign for engineers, executives, IT experts, doctors, nurses and other workers won't help our country, it will hold us back," said US Chamber of Commerce CEO Thomas Donohue in a statement.
3. Overturn Race and Sex Stereotyping Executive Order
President Trump's Executive Order on Combating Race and Sex Stereotyping, issued in September, is almost certain to be short-lived. It included requirements for government contractors when providing diversity and inclusion training to ban the use of any workplace training that conveys any form of race or sex stereotyping, or any form of race or sex scapegoating, in its employees.
Some employers had expressed concern that the executive order would create a chilling effect on efforts to address racial diversity. In fact, the OFCCP recently questioned plans by Microsoft and Wells Fargo to double their ranks of Black managers and executives over the next five years as possible race discrimination.
President-elect Biden has said he opposes this order and views it as denying the reality of systemic racism and a barrier to diversity efforts. Thus, he is very likely to issue an executive order of his own rescinding it.
4. Increase Agency Enforcement
Employers should expect a sharp uptick in enforcement from the Occupational Safety and Health Administration (OSHA), including stiffer penalties for COVID-related violations.
OSHA currently has about 750 inspectors, which represents a 25 percent drop from a decade ago. However, President-elect Biden plans to make workplace safety issues a priority, both relating to the pandemic and otherwise. During the campaign, he called on President Trump to "double the number of OSHA investigators to enforce the law," existing standards and guidelines.
Biden also is likely to reinstate the Obama-era workplace safety reporting rule to require many employers to submit information electronically about workplace injuries and illnesses to the federal government. OSHA largely eliminated that rule in January 2019 for employers with 250 or more employees.
The National Labor Relations Board (NLRB) has shifted dramatically in recent decades depending on which party occupies the White House. For instance, it has had a decidedly pro-employer tilt under President Trump, while under President Obama it leaned more in favor of employees. Although changes will not be immediate for the five-member Board, they are likely to come during the new administration.
Currently, the NLRB has three Republican members and one Democratic member (with one Democratic seat vacant). However, Republican member William Emanuel's seat is set to expire on August 27, 2021. If a Democrat fills Emanuel's seat and the current vacant seat is filled, this could lead to the NLRB possibly taking a more employee-friendly stance on certain issues, including:
- Providing a broader definition of what rises to the level of protected, concerted activity at work;
- Revising the existing definition of employee and taking a more restrictive view of who qualifies as an independent contractor under the National Labor Relations Act (NLRA), viewing more gig workers as employees, and
- Revisiting the joint employment rule under the NLRA.
Department of Labor
At the US Department of Labor (DOL), President-elect Biden is expected to nominate a progressive candidate to take the helm. Biden has a history of supporting workers and organizing labor. He kicked off his campaign by saying, "I am a union man. Period."
In terms of enforcement, Biden has said he will seek to obtain more funding to hire DOL investigators to target employers that misclassify workers as independent contractors.
The new administration also may seek to raise the minimum threshold for mandatory overtime pay under the Fair Labor Standards Act. Effective January 1, 2020, the DOL raised the threshold from $23,660 to $35,568. But that figure is nearly $12,000 less than the Obama administration's 2016 overtime rule. A federal court in Texas had ruled that the DOL exceeded its authority in that case by setting the salary level "too high." Any new rule is almost certain to face a legal challenge.
Possible changes at the Equal Employment Opportunity Commission (EEOC) may take a bit longer as the Democrats will not be able to assume a majority on the five-member Commission any earlier than July 2022.
5. Seek to Extend Coronavirus Benefits
The Families First Coronavirus Response Act (FFCRA) made millions of US workers eligible for federally mandated paid leave for the first time during the COVID-19 pandemic. However, the FFCRA is set to expire on December 31.
President-elect Biden's plan to fight the coronavirus includes extending paid family leave for those exposed or sick with COVID-19, or those who need to quarantine. During his campaign, Biden has proposed up to 12 weeks of paid family and medical leave for a qualifying employee's or family member's serious health condition. He also expressed support for mandatory paid sick leave.
Biden also likely would support eliminating the FFCRA's large employer exemption for those with 500 or more employees.
The possibility of a Republican-led Senate makes it much less likely paid leave will become permanent, but it remains to be seen whether an agreement can be reached to extend the FFCRA on a temporary basis (or reinstate it after January 20).
In addition, Biden has taken positions on other coronavirus-related issues, including:
- Being highly critical of President Trump's decision to pull out of an emergency pandemic relief bill in October ("He turned his back on the small businesses . struggling to keep their doors open," said Biden); and
- Publicly supporting the hiring of 100,000 people for national contact-tracing and virus testing.
6. Attempt to Raise Federal Minimum Wage
While many states and localities have gone further, the federal minimum wage has remained stagnant at $7.25 since July 2009. That marks the longest stretch without an increase since it was first introduced in 1938.
President-elect Biden has publicly supported increasing the minimum wage to $15 an hour, likely under a phased-in approach. For instance, a 2019 bill that passed the House of Representatives would have raised it to $15 by 2025.
Biden also has voiced support for the following related measures:
- Eliminating the tipped minimum wage, which permits employers of tipped workers to include tips as part of the minimum wage payment;
- Eliminating the subminimum wage for individuals with disabilities; and
- Raising the minimum wage for federal contractors to at least $15 - which might take effect immediately rather than being phased in.
While several states have moved towards a $15 minimum wage, raising the federal minimum to that level looks exceedingly unlikely on the legislative front without Democratic control of the Senate. Barring the introduction of a compromise measure, the action involving minimum wage increases is likely to remain driven by the states.
7. Support Equality Act
President-elect Biden has vowed to make the Equality Act a top legislative priority during his first 100 days in office. The Equality Act would expand Title VII of the Civil Rights Act and the Fair Housing Act to ban discrimination based on sexual orientation and gender identity in employment, housing, jury selection and public accommodation.
The House passed the measure in 2019, but it went nowhere in the Senate. A similar result may occur in the new Congress, but another effort is likely. And if that fails, Biden may seek to expand LGBTQ rights via executive order.
The Supreme Court's June ruling in Bostock v. Clayton County provided momentum for these rights in the employment realm as it expanded protections for LGBTQ workers. In that case, the Court held that employers violate Title VII when they fire an individual merely for being gay or transgender.
The death of Justice Ruth Bader Ginsburg, who was part of the majority in Bostock, has led to speculation that the Court may be less hospitable to the LGBTQ community in future cases. In particular, a couple of justices suggested recently that the Court's 2015 same-sex marriage ruling may have been wrongly decided, which may give renewed urgency to a legislative push in this area.
8. Push for Pay Equity
One of the biggest trends affecting employers in recent years has been the advent of pay equity laws at the state and local levels to close the wage gap between men and women who perform the same or similar work. These laws restrict an employer's ability to seek or consider a job applicant's salary history during the recruiting and hiring process.
While still a Senator, President-elect Biden co-sponsored the Paycheck Fairness Act and he has vowed to sign a similar measure into law that would eliminate the gender pay gap by:
- Banning salary history questions during job interviews;
- Prohibiting employers from restricting employees from discussing pay information with one another;
- Strengthening anti-retaliation provisions; and
- Increasing civil penalties for violations of equal pay provisions.
As with some other key legislative priorities, success of the Paycheck Fairness Act will likely depend on the final makeup of the Senate. But even if no federal action is forthcoming, red and blue states have passed salary history laws, so there is reason to believe this trend will continue at the state and local levels.
9. Prioritize Health Care - Affordable Care Act
While it is unlikely the incoming Congress will take action on health care barring Democratic control in the Senate, it is still an area that President-elect Biden will be watching closely. After all, the Affordable Care Act (ACA) was a signature achievement of President Obama's administration, and Biden has fully supported it.
The Supreme Court heard arguments on November 10 in a case that could strike down or scale back a major provision of the ACA, the so-called individual mandate. A ruling is expected by June 2021.
Biden's stated health care plan would expand the ACA's subsidies and also promises employees that they can keep their employer-based health insurance. His plan also would launch a public option that his campaign said would be "like Medicare," with primary care covered with no co-payments. But his ability to achieve these goals will be difficult in the Senate.
10. Address Payroll and Taxes
President-elect Biden has repeatedly stated plans to increase taxes for the highest-income earners (those making $400,000 or more per year). Those earning $400,000 or more would also be subject to the Social Security payroll tax. Biden additionally has voiced support for raising corporate taxes and setting a minimum tax rate for businesses.
In addition, a tax credit for employers that hire workers with disabilities also may be raised during his administration. Any sort of tax reform may be the most daunting challenge for the new administration, however, as business groups are likely to lobby Senators from swing states to oppose such changes.