Here are several employment law changes we will likely see under a Biden Administration:

  • Bloomberg reported that Biden’s Labor Transition Team includes Obama veterans signaling a likely return to Obama-era worker protections.
  • President-elect Biden will likely focus on the ACA and its underlying policies (depending on the outcome of the U.S. Supreme Court’s decision in California v. Texas — based on recent arguments, commentators believe the law might withstand this third challenge).
  • OSHA Protection | Biden also promises to focus on workplace safety amidst the pandemic. We can expect increased enforcement by the Occupational Safety and Health Administration, more whistleblower protections for workers and an immediate declaration of an emergency temporary standard to combat the coronavirus pandemic is likely.
  • Likely uptick in wage and hour litigation.
    • Expanded definition of joint employer | In March 2020, the Trump DOL adopted a final rule narrowing the definition of “joint employer” thereby limiting the circumstances under which multiple companies could be deemed to “employ” the same workers. A Biden Administration would likely reverse this thereby making it more likely companies could be liable as joint employers.
    • More risks for independent contractor classifications | In September 2020, the Trump DOL proposed a rule broadening the “independent contractor” test thereby making it easier for companies to classify workers as independent contractors under the Fair Labor Standards Act (“FLSA”). A Biden Administration would likely undertake new rulemaking to rescind the independent contractor rule or adopt new regulations that provide more worker-protective interpretations of employee status under the FLSA.
  • Government Contractors and D&I Training | President-elect Biden probably will revoke President Trump’s October “Executive Order on Combating Race and Sex Stereotyping.” This EO restricts the federal government, federal contractors, and certain federal grant recipients from conducting specific types of diversity and unconscious bias training.
  • Return of the revised EEO-1 Form collecting compensation data and more enforcement of pay equity measures | This federal initiative began during the Obama years, and ended under the Trump administration. It seems likely that the Biden Administration will address pay equity legislation passed at the federal level (depending on the constitution of the senate).
  • Increased national minimum wage | Biden’s platform calls for a $15 federal minimum wage. The Biden Administration also will seek to eliminate the reduced minimum wage for tipped employees (i.e., the tip credit) and likely will seek an increase in the minimum salary to qualify as an exempt employee under the FLSA.
  • At the NLRB, Biden’s platform commits to encouraging and incentivizing unionization and collective bargaining. He’s promised to create a cabinet-level working group that includes representatives from labor. In the first 100 days of the Administration, the working group will deliver a plan to increase union density and address economic inequality.
  • President-elect Biden is expected to support paid leave benefits for employees. Biden supports 12 weeks of paid leave for all workers to care for their newborns, newly adopted or fostered children, for their own or a family member’s serious health condition, or to care for injured service members or deal with “qualifying exigencies arising from the deployment” of a family member in the Armed Services.
  • A return to challenges on mandatory arbitration agreements. Biden’s platform promises he will enact “legislation to ban employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their right to class action lawsuits or collective litigation, as called for in the PRO [Protecting the Right to Organize] Act.”