Podcast: What the Biden Presidency Could Mean for Employers

This podcast explores the various changes employers should expect after President-elect Biden takes office on January 20, as Proskauer employment attorneys Anthony Oncidi and Laura Fant join XpertHR Legal Editor David Weisenfeld. Oncidi heads the labor and employment group at Proskauer's Los Angeles office while Fant practices with the firm's New York City office.

While there would have been more developments had the Democrats taken control of the Senate (at best they can achieve a 50-50 split), Oncidi and Fant agree there will be significant action at the regulatory level. For instance, Fant noted the new administration is certain to hire more investigators at the US Department of Labor, the Occupational Health and Safety Administration and other agencies. Oncidi said employers should expect a host of executive orders, including some before the end of January.

Listen Now

Additional Resources

Post-Election 2020: Workplace Resource Center

Post-Election Civility and Productivity in the Workplace

Transcript

David Weisenfeld: I'm David Weisenfeld for XpertHR.com, published by the LexisNexis Risk Solutions Group.

There's little question that the election of Joe Biden as the nation's 46th president will have an impact on employers. But the changes are sure to be tempered a bit by the likelihood of continued divided government. With both Senate seats in Georgia headed for recounts, the best-case scenario for Biden is a 50-50 split in the Senate.

So what are the biggest issues you should be on the lookout for after January 20th? And what executive orders affecting the workplace are likely to be on the horizon? On this podcast we'll explore those questions and more with Proskauer employment attorneys, Anthony Oncidi and Laura Fant.

Tony heads the labor and employment group for Proskauer's Los Angeles office, and is often quoted by national media outlets. Meanwhile, Laura practices with the firm's New York City office, and she is a frequent contributor to Proskauer's Law and the Workplace blog.

And Laura, I'll start things off with you and welcome you to the podcast. There was talk of paid leave, a Paycheck Fairness Act, and expanded employee rights if Biden was elected, but I guess the $64,000 question is without Senate control do you think that will go by the wayside at the federal level? [0:01:38.9]

Laura Fant: Well thank you, David, first for having me. I'm very happy to be here today to talk about these issues.

So I think that certainly is the big question, the big elephant in the room. How much can actually be done in a Biden administration if he does not have the Senate on his side, for lack of a better term?

I think for a lot of these issues there is some room for advancement at the legislative level. There are going to be certain proposals, for example, in the area of pay equity. And it might be difficult for a Republican Congress to completely ignore or shoot down because there is some level of popular support for it.

Similarly, paid family leave. Certainly now we're in the midst of a pandemic where people are juggling an a lot of household issues, caregiver issues, and I think that's another issue that could see bipartisan support so long as the structure of any proposal can be made palatable to both sides.

But regardless of whether we see a lot of advancement at the legislative level, where I think we will see action is at the regulatory level. We'll be coming from a Trump administration that was highly focused on deregulation. Going into a Biden administration I do think we will see more activity coming out of the Department of Labor, the Equal Employment Opportunity Commission, the OFCCP. So I think what may not be able to be handled at the congressional level, we may see more activity at the regulatory level.

David Weisenfeld: That's a good point because President-Elect Biden really has the opportunity to reshape to all of those agencies in the next couple of years, so that'll definitely be interesting to watch. [0:03:35.2]

Laura Fant: That's absolutely right.

David Weisenfeld: Well Tony, I want to bring you into the conversation, and it's great to have you back, and ask if you see any room for compromise. And specifically I wanted to bring up the minimum wage because Biden has voiced support throughout the campaign for a $15 minimum wage. Obviously with divided government that's going to be much less likely to occur, but do you think any middle ground could be found at, say, the $10 or $11 level? [0:04:07.8]

Anthony Oncidi: Well first of all, David, thanks for having me back. It's always a pleasure to speak with you on the program.

With respect to the minimum wage, I think it's really emblematic of a larger issue, which is the extent to which one size fits all. So right now the minimum wage does exist on the federal level but also on the state and local level. Many municipalities have their own minimum wage laws.

And I think there's been an agreement among legislators of both parties that having local regulation with respect to the minimum wage may be the most intelligent way of dealing with this, meaning that certainly the wage can be raised in certain circumstances and in certain geographic locations, but going to a $15 minimum wage would significantly impact jurisdictions in the United States that may have softer employment markets, that may have lower-skilled workers, and certainly who may be employed in industries that are populated by larger numbers of employees, for example in the food services, retail and other sectors where you have those employees who are paid the minimum wage. More than doubling the federal minimum wage from $7.25, which is what it is now, to $15 could obviously have a significant negative impact on employment in some of those regions.

So I do believe there may be some room for compromise with a more conservative branch of government, in terms of either a Republican-dominated or slightly Democrat-margined majority in the Senate, but I don't think that moving to the $15 minimum wage, which is kind of an arbitrary number - it is one that obviously pops up a lot - but I think that there's a good chance that there is room for some compromise, between $7.25 and $15, not going to the full $15.

David Weisenfeld: Well both President Obama and President Trump made frequent use of executive orders. They certainly had little in common but they did have that, although of course the executive orders were quite different. And President-elect Biden has already said on his website that some executive orders will be coming when he takes office.

Tony, what do you think will be the ones that have the most significance for employers? [0:06:43.8]

Anthony Oncidi: Well I think the Dreamers program, which will have an indirect, I guess, effect on employers probably will be reinstated in some form. It did exist by way of executive order and then it was taken away, or at least there was an attempt to take it away by executive order. And there's no question that will land back on the landscape here, I think, and President-elect Biden has already indicated as much.

I think there are other issues too, for example, ways in which federal contractors are dealing with both training and LGBTQ issues. Some of those have been the subject of executive orders, and I think that that will continue.

So I think there's no question that at the margin there's going to be as much, if not more, effort exerted by the Biden administration to making sure that those things that can be regulated by way of executive order will be regulated by way of executive order. I expect that'll happen before the end of January.

David Weisenfeld: President Trump made big news in September with his executive order that restricted the federal government and contractors from offering diversity training, and some thought that this executive order in particular had a bit of a chilling effect on efforts to address racial diversity. Laura, what are your thoughts as to whether President-elect Biden will undo that order? [0:08:17.9]

Laura Fant: So first of all for any listeners who may not be so familiar with this order, as you mentioned it was issued in September of this year, and it focused on "not promoting race or sex stereotyping or scapegoating in any diversity or anti-discrimination training being presented by employers who are also federal contractors."

So this, I think, raised a lot of concern from such employers given that the language of the executive order is rather broad. What exactly is meant by "race stereotyping," "sex stereotyping," "scapegoating" etc.? And a concern that an employer may inadvertently be running afoul of the prohibitions under this order when otherwise trying to make a good-faith attempt at providing training to their employees.

President-elect Biden has already come out and said that he is strongly opposed to this order, and I think that this is certainly something that we will see rescinded or amended in some significant way, likely right out of the gate.

David Weisenfeld: Again my guests are Proskauer employment attorneys, Laura Fant and Tony Oncidi. And I wanted to shift next to the coronavirus. Surprising we got this far without talking about it, but certainly that was a huge issue in the election. President-elect Biden has made that one of the seminal points of things that he wants to address immediately.

We saw the Families First Coronavirus Response Act, the first-ever federal paid level law, enacted just this spring. But that's set to expire at the end of the year. So Laura, do you think that the new president will be able to extend that in 2021? [0:10:12.5]

Laura Fant: Well certainly coronavirus stimulus and some sort of stimulus bill has been a hot topic of conversation, even prior to the election, and it continues.

I do think that we are likely to see some form of extension or modification to the current Families First Coronavirus Response Act (or FFCRA as it's sometimes referred to), which as listeners may be aware provides paid leave for certain coronavirus-related leave, whether it be for the employees' own health needs, or certain circumstances to care for a family member who is sick, or to care for a child whose school or childcare has been closed down due to the pandemic.

Certainly I think that this is a popular proposal, generally speaking, from a public perception, given that people are continuing to struggle with the need to manage Covid-related health needs and certainly childcare issues. And now that we are starting to see a "second wave" of Covid in many urban and non-urban areas, and in certain other areas their first wave really starting to kick up, I think this is something that many people are going to be looking out for.

The big question, of course, is what might such as extension or modification to FFCRA look like, given the fact that part of the original package was that the paid leave that's being provided would be reimbursable to employers via tax credits. So whether that's something that both sides will be able to get behind continuing in some sort of perpetuity I think remains an open question. But I think we are likely to see some advancement in this area as the new administration takes effect.

David Weisenfeld: Well as I mentioned at the top, the Senate got just slightly closer, and we do have the two Georgia Senate seats still in play. So going back to Tony, in terms of other things that President-elect Biden might be able to accomplish legislatively, is there anything out there that jumps out at you, or do you think this will look a look like the last couple of years of President Obama's second term when we had a lot of gridlock? [0:12:42.1]

Anthony Oncidi: I don't know, maybe I'm an eternal optimist, David, but I do think that there may be less of an appetite on both sides for rancor going forward. We certainly are in the midst of a serious pandemic and, as Laura mentioned, I think that's something that both parties have an interest in addressing. And certainly neither party has an interest in appearing to be ignoring the issue or not being receptive to potential solutions that are going to make life easier for employees and people generally.

And so I think that if these statutes that do address these issues, things like the federal Family Leave Act, some form of it I do think will be on the platform, and I do think it's something that both sides will have an interest in because the next election's only two years away in trying to reach some kind of a deal.

The other thing is just from a political standpoint, by all accounts the relationship between President-elect Biden and a number of the Republican senators, including Mitch McConnell is, and presumably will continue to be, quite good. And so as a result of that there may very well be deals to be made and legislative accomplishments to be proud of on both sides. And I think we're all hopeful that something like that will happen.

So I think there's going to be less blockage than there may have been at the end of the President Obama term and perhaps more cooperation. At least that's what we're hoping for.

David Weisenfeld: Definitely lots of people will be watching that very closely. Well Laura, I want to go back to something that you touched on earlier, and that involves agency enforcement because despite all of our talk about some of the hurdles in terms of what might be able to be achieved legislatively, I would think that employers will have to be more on guard with stepped-up enforcement from the DOL, the OFCCP and others. Maybe you could talk a little bit about that. [0:14:48.8]

Laura Fant: I think that that's absolutely right, and I think this goes back to the difference between the Trump administration's focus on deregulation and what I anticipate will be a Biden administration's focus on… is really giving these agencies back some of the teeth that they may have had in prior administrations to get out there and be enforcing the laws that they are tasked with enforcing.

I think we'll also potentially see some more funding flowing to these agencies from a Biden administration, which will mean that they will have more of an opportunity to be hiring additional investigators and really getting people out in the field to be investigating and enforcing the various laws that the Department of Labor, the OFCCP and the EEOC do enforce. So I think that's certainly something employers should be keeping on their radar. Not that they should have ever been complacent about these issues in the first place, but I think we will start to see a bit of an uptick in activity in that regard.

David Weisenfeld: And how about OSHA? With Covid enforcement I know there was a lot of criticism of that agency, that perhaps more could have been done at various points this year, and there has been some talk of more investigators there. Do you think that's an area that employers need to be on guard with as well? [0:16:16.9]

Laura Fant: I do, I do. Certainly there was a lot of controversy surrounding OSHA's, for lack of a better term, failure to move forward with passing certain specific guidelines around coronavirus and instead falling back upon their more general standards that have always been in existence.

I do think that the Biden administration, through both President-elect Biden and Vice-President-elect Harris have made clear that public safety, including employee safety, is a high priority of theirs. So I do think we should expect to see more coming out of OSHA in that regard, both in terms of regulatory action on their part, as well as enforcement.

David Weisenfeld: Tony, I want to turn back to you and ask about what are some things that are flying under the radar screen, that may not be necessarily getting the headlines, but that you think might be a concern or two that employers may not be aware of with the new administration? [0:17:26.0]

Anthony Oncidi: Sure, there are a number of important proposals that are on Joe Biden's website that would directly affect many workplaces around the country. There was little, if any, discussion of this during the campaign, and now with the uncertainty that surrounds the control of the Senate, some of these obviously are potentially in jeopardy. But among the things that the Biden campaign ran on are things that have been traditionally state law-controlled topics and issues.

For example, one of the things that the Biden administration intends to do if it can get it through Congress is to adopt the so-called ABC test for all "labor, employment and tax laws." What does that mean? Essentially what it would do is recharacterize almost all independent contractors in the United States as employees.

And this is something that has been enacted to great consternation of employers (and employees, by the way) in California. It's something known as Assemby Bill 5. Lorena Gonzalez in the California Assembly sponsored it and authored it, and it has been extremely controversial because it essentially converts independent contractors, including Uber and Lyft drivers most famously, into employees.

We had an initiative here on the ballot here in California last election a few days ago that exempted Uber and Lyft drivers from that law, and that actually did pass resoundingly in California. So in many ways it gutted the ABC test, at least with respect to so-called "gig workers" in the transport industry.

But President-elect Biden has said he wants to make that a federal law, so that essentially independent contractors throughout the nation will be imperilled, at least potentially, if that law were to pass and get past the Senate.

Another thing that again most employers do not think of as being a federal issue and usually just a state issue is non-compete agreements. The Biden administration would like to outlaw non-compete agreements everywhere in the United States. In many states, such as my own in California, they are already on life support. There are very few non-competes that actually can be enforced. There are some exceptions, but few. But there are other states where non-competes are, if they are reasonable, are enforceable. This law, if it passes, would be nationwide and would prohibit them everywhere in the United States.

And then perhaps even more controversially, there would be an effort by the Biden administration based on what's been stated to eliminate arbitration agreements between all employers and all employees in the United States.

By some estimates, more than 55% of employees in the private sector have signed, and are subject to, enforceable arbitration agreements. If this law were to be passed, it goes by the acronym "the FAIR Act," which stands for the Forced Arbitration Injustice Repeal Act. If this were to pass the Senate and be signed by the President, it would mean the state courts and the federal courts would be inundated with tens of thousands, hundreds of thousands of new cases that right now are being dealt with in the arbitration context privately.

So those are some of the issues that I think are out there. I think most of them are probably not going to get very far in the Senate, regardless of what happens in Georgia, but at least there's the potential that those could get passed and enacted.

David Weisenfeld: I'm curious Tony hearing you talk about that last one with mandatory arbitration about even in the event that did pass, whether it would stand up in the courts because the Supreme Court has repeatedly upheld mandatory arbitration as a condition of employment in a number of cases that were decided 5-4, and that was even when Justice Ginsberg was on the Court. So do you think that that would have any possibility of standing up if it were to pass? [0:21:47.7]

Anthony Oncidi: I do, because the notion is that the Federal Arbitration Act, which is the basis upon which those opinions are founded, would be changed. Essentially the pronouncements we've gotten from the United States Supreme Court on arbitration are statutorily based. They're not constitutionally-based. And if the statute gets changed, so does the rule, and that's what this proposal is. It is to change the statute such that the Supreme Court would have no say in upholding an arbitration agreement that is violative of the federal statute which is being proposed.

David Weisenfeld: Got it. Well in our final few minutes I want to give each of you a chance to add anything that we may not have had a chance to touch upon thus far. I know, for instance, there was a lot of talk about expanding the organizing rights for workers, among other things during the Biden campaign. Perhaps that might be on the backburner, but just speaking generally I wanted to see if either of you had a final thought. And Laura, I'll go to you on that first. [0:22:53.3]

Laura Fant: So certainly on the labor, traditional labor side of things there have been a lot of proposals put forward and I'll let Tony talk about some of those in a little bit more detail. But I also think it's important in that area to understand that pretty early in his term President-elect Biden will have an opportunity to nominate a new General Counsel to the National Labor Relations Board.

There's also currently an existing vacancy on the Board that will be available to be filled, and one of Trump's appointees, William Emanuel, his term will be expiring in August of 2021. So that in and of itself will give President-elect Biden an opportunity to start reshaping the structure of federal labor law, not even taking into account any legislation or regulatory action that he may otherwise be pushing, which I'll let Tony speak about a little too.

And then you know, I think a few other things that are out there that are important to be keeping an eye on are certain proposals in the area of anti-discrimination and civil rights. The Biden platform includes a push to enact the Equality Act, which would amend Title VII to officially prohibit discrimination in employment on the basis of sexual orientation or gender identity.

Now as listeners may be aware, during the last Supreme Court term there was the Bostock decision which did hold, from the perspective of the Supreme Court, that Title VII's prohibitions on discrimination on the basis of sex necessarily include sexual orientation or gender identity. But I know there is interest on the part of the Biden administration to officially enshrine that in the statutory language, thus making it much harder for that position to be overturned by the Supreme Court or in the future.

Anthony Oncidi: David, my final thoughts on this, at least with respect to the organizing issues, union issues, and if one looks at the Biden website there are a number of proposals under the title "The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions," and it does just that. There are probably a half dozen very significant proposals, again most of which probably will not get much play in the United States Senate.

But the most important of those proposals is something that's been kicking around for a very long time. It sometimes goes by the acronym EFCA, the Employee Free Choice Act, E-F-C-A. And this has been Valhalla for the unions for a very long time. What they really would like to have is essentially an elimination of elections, union elections, because they don't win maybe as many of those as they'd like, and instead of having elections in private workplaces they would have something called card check.

And essentially what that does is it allows union organizers to contact members of the prospective union, employees, get them to sign up in no formalized fashion that is the manner in which the sign-up occurs, it's not regulated either by the National Labor Relations Board or by the employer, and if enough signatures are gathered, the union can present that list to the employer and say, "Guess what? You've got a union, let's bargain."

That is something which many, many employers are extremely wary of, and many unions obviously have wanted to have that change come. That is on the Biden platform. Again I think there is zero chance that any Republicans, and probably very few of the Conservative Democrats in the Senate, would vote for that. But that's been on the wish-list for a long time and it's at the top of what President-elect Biden would like to do if given a free hand on that issue.

David Weisenfeld: Well certainly a lot to watch in the coming months, and I appreciate the insights from employment attorneys Tony Oncidi and Laura Fant of Proskauer's Los Angeles and New York City offices respectively. They've been my special guests on this podcast, and Tony and Laura, I want to thank you both for your insights on the post-2020 election landscape. [0:27:34.6]

Anthony Oncidi: Thank you, David.

Laura Fant: Thank you very much.

David Weisenfeld: I'm David Weisenfeld. Thanks for listening. Continue checking our website for more podcasts affecting the workplace, including Back-To-School Leave Issues Bedevilling Employers.

The opinions expressed in this program do not represent legal advice, nor should they necessarily be taken as the views of XpertHR or its employees. XpertHR.com is published by the LexisNexis Risk Solutions Group.

For more information about XpertHR, our subscription offering, or our 50-state Employee Handbook, call us toll free at 1-855-973-7847.