Labor & Employment Issues During President Biden’s First 100 Days

February 9, 2021 | Podcasts

With a new presidential administration and a shift in power in Congress, there are some ambitious goals set forth in the first 100 days of Biden’s presidency, and employment laws are included in those announced policy goals. Jackson Walker Labor & Employment attorney Jackie Staple discusses a few of the issues facing employers as a result, including COVID-19 relief, a possible wage increase, and Biden’s push to increase union representation.

Greg Lambert: Hi, everyone. I’m Greg Lambert, it’s February 9th, and this is Jackson Walker Fast Takes. With the new presidential administration and a shift in power in the U.S. legislature, there are some ambitious goals set forth in the first 100 days of the Biden administration. Employment laws are included in those announced policy goals. I asked Jackson Walker Labor & Employment lawyer Jackie Staple to come on and discuss some of the potential issues facing employers as a result. Jackie, thanks for taking the time to talk with me.

Jackie Staple: Anytime, Greg. Thanks for asking me. There is definitely a lot to talk about.

Greg Lambert: Well, in that case, let’s jump right in. So Jackie, what are you hearing about the Biden administration and its top priorities for labor and employment issues within those first 100 days?

Jackie Staple: Greg, what’s interesting with the Biden administration is some are already likening Biden’s approach to our 32nd president, Franklin Delano Roosevelt. What history tells us about FDR is he was instrumental in getting 70+ laws passed in his first 100 days. If you’ll remember what was going on at that time – the Great Depression – the country was just coming out of that, and FDR implemented the New Deal with a focus on restoring the economy and creating jobs, and he also ended prohibition. A few years later, FDR had his Second New Deal and out of that came some of our most favorite labor and employment laws, including the Fair Labor Standards Act. That’s the federal law that set a minimum wage, meant to give people a decent living, and also overtime requirements. So, no doubt Biden will also have labor and employment laws at the front of his focus, especially with our circumstances right now with COVID-19.

Greg Lambert: Jackie, speaking of COVID, that’s definitely touched every American employer and employee in some way over the past year. What can we expect about Biden’s COVID plan that will impact the workplace specifically?

Jackie Staple: Well, Greg, you’re right. It sure has. Biden has already said a great deal about what he expects to do with COVID. Now, overall, we’ve lost at least 10 million jobs because of COVID. Now, Biden’s put together a package, a proposed $1.9 trillion plan for enhanced unemployment support and increased stimulus. As it stands now, what Biden wants to do is focus on vaccine development, distribution, deployment of PPE (personal protective equipment), and again enhance that unemployment.

Another piece that Biden’s looking at is, of course, workplace safety. So, how do we keep folks safe who have returned or that will be returning to work? Our Occupational Safety and Health Administration (OSHA) heads up workplace safety at the federal level, and Biden has some newly appointed OSHA administrators. OSHA released some guidance, entitled Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Now keep in mind this guidance isn’t a regulation or a standard, so it’s not law, but this is meant to be helpful to employers in terms of tips and tricks to make the workplace as safe as possible. OSHA really wants each employer to look at the context of its workplace and the industry it functions in and tailor these measures to what works for them. Now, this really isn’t new. OSHA had issued guidance previously on preparing workplaces for COVID-19, so this was really like part two to that.

And then Biden’s also asked OSHA to issue COVID guidelines by early February, and possibly to consider implementing temporary standards. Now, standards are the things that OSHA can enforce, and so do have a force of law and employers can be cited on those.

Greg Lambert: Jackie, I understand that Biden’s campaign supported a pro-union agenda. How might employers be impacted by that?

Jackie Staple: You’re right, Greg. Biden’s campaign did publish what was called the Biden Plan for Strengthening Worker Organization Collective Bargaining and Unions. So, you’re absolutely right. Part of his campaign was a pro-union agenda.

If we look back, the National Labor Relations Act – federal law that is enforced by the National Labor Relations Board – does touch all workplaces in some aspects, whether they’re unionized or non-unionized, but it does protect union organization and it also regulates unions activities and keeps them in check as well. So, Biden’s plan is to enact this PRO Act (PRO), Protecting the Right to Organize Act. Within that Act, it’s really encouraging some strategic partnerships where the National Labor Relations Board can partner with the other federal agencies, like the EEOC and the IRS, to target a couple things. So, independent contractor misclassification has been an ongoing issue and source of litigation, because each agency has its own test for who is an employee versus who’s an independent contractor—and remember, independent contractors are really in business for themselves and are not entitled to the labor and employment protections generally under the laws like an employee is. Biden really wants to demand compliance with labor laws, increase enforcement, and encourage unionization by making it much easier for employees to unionize.

So what are some things that Biden is looking at to help do that? Well, some of the things are—if you’re familiar with labor law, you’ll remember the Persuader Rule from the Obama administration. He’s looking at bringing that back. And then things like banning mandatory employee meetings where their employer can sit them down and basically hold that anti-union campaign and convey the employer’s message. Right now, we have a pretty low percentage, historically, of employees who are part of bargaining union. So, it’s really contemplated that Biden wants to see the percentages going back up with the belief that if employees are represented by a union, they’re more likely to increase their standards of living—higher pay, solid health care, paid sick time, and other things that employees benefit from.

So, the real question, Greg, I think is: Is this going to be a priority in the first 100 days? If we didn’t have COVID going on and having to figure out a response to that, maybe. But my prediction is this will be put on the back burner for a little bit, while Biden and his administration figure out the COVID response first.

Greg Lambert: Alright, well, thanks. That gives us quite a few things to look at over the next 100 days.

Jackie Staple: Absolutely.

Greg Lambert: Jackie Staple, I appreciate you taking the time to talk with us.

Jackie Staple: Thanks, Greg. Take care.

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