Elections have consequences — especially for employers. With the November 2020 elections in the rearview mirror, many employers are peering through their crystal balls to glean some insights as to what might be in store for them on the labor and employment policy front.
The continuing pandemic, teetering economy, and social unrest make it even more vital for employers to prepare for pending policy changes. Here are the major labor and employment policy changes employers should expect in 2021.
A Divided Legislature?
The two Georgia Senate runoff elections scheduled for Jan. 5, 2021 have enormous implications for federal labor and employment policy in the next few years. If the Democrats win those two races, this would give them the 51 votes needed to abandon the legislative filibuster. (Vice President Kamala Harris can cast tie-breaking votes.)
With no filibuster, Democrats could pass bills with 51 votes, as opposed to 60. However, Sen. Joe Manchin (D-WV) has already stated that he will not vote to eliminate the filibuster. Other Democrat senators have sent similar signals. Because Democrats cannot afford to lose a single vote, just this one defection means that it is likely that the legislative filibuster will remain intact, at least for the immediate future. Accordingly, labor and employment related bills such as the Protecting the Right to Organize (PRO) Act, the Paycheck Fairness Act and an increase in the minimum wage, will likely be blocked.
This is not to say that there will be absolutely no employment legislation passed in Congress. Several bills that passed the House in the 116th Congress with bipartisan support could be reintroduced in the 117th Congress with a renewed push to get them across the finish line. These bills address matters such as pregnancy accommodation in the workplace, the multi-employer pension crisis and eliminating the 7% per-country cap for employment-based immigrant visas.
Despite all this, political winds can change abruptly, so employers should still remain vigilant with regard to the PRO Act, especially. This bill will be the top labor legislative priority for Democrats and labor organizations. Among other provisions, the PRO Act would:
• Resuscitate and codify National Labor Relations Board (NLRB) decisions concerning joint employer, gerrymandered bargaining units and employee email access.
• Codify the “ambush” elections, persuader and notice posting regulations.
• Prohibit right-to-work laws.
• Create a private cause of action for unfair labor practices (ULPs).
• Allow for new civil penalties, including liquidated damages.
• Codify the California’s A.B. 5 regarding independent contractors.
• Require binding arbitration for first contracts.
• Overturn the Supreme Court’s decision in Epic Systems, essentially prohibiting arbitration agreements.
• Prohibit employers from permanently replacing strikers while also allowing secondary boycotts.
If the PRO Act become law, it will be the most significant labor legislation since the Wagner Act in 1935.
On the Regulatory Front
When President-elect Biden assumes office on Jan. 20, 2021, expect him to waste no time issuing and repealing executive orders. Indeed, President Trump’s Executive Order on diversity and inclusion training will probably be rescinded before the inaugural balls later that evening. Many of President Trump’s immigration-related executive orders, such as those concerning refugees, asylees and certain COVID-19 related restrictions, will also be rescinded. Regardless of which party is in the White House, federal contractors often serve as guinea pigs for the respective administration’s policy preferences. Expect this administration to follow suit.
At the agencies, the continuing COVID-19 crisis has catapulted workplace safety into the national conversation. The Trump Department of Labor’s Occupational Safety and Health Administration (OSHA) addressed the pandemic’s impact on the workplace through the issuance of non-binding guidance materials, rather than a one-size-fits-all standard that could not adapt to various industries or our changing understanding of the virus. Employers can expect a Biden OSHA to take the opposite approach and issue a COVID-19 specific emergency temporary standard (ETS) to apply to the workplace. This will be the top employment policy priority for the Biden administration, and an ETS will likely issue shortly after inauguration day.
Beyond an ETS, once Biden’s nominees are in place at the Department of Labor (DOL), National Labor Relations Board and other agencies, they are expected to undertake a “repeal and replace” campaign of regulations and policy prescriptions enacted by the Trump administration.
At the DOL, this includes regulations on joint employer under the Fair Labor Standards Act (FLSA), independent contractors under the FLSA, and potentially the overtime regulations. A Democrat majority at the NLRB will be expected to reverse the joint employer regulation and restore the entirety of the Board’s 2015 changes to its election procedures.
Thus, while the Senate may serve as a check on the administration’s more ambitious legislative priorities, the employer community should prepare for a much more aggressive regulatory and enforcement agenda in 2021. Preparing now can help prevent employers from being caught flatfooted in the future.
About the Author
James Plunkett is senior government relations counsel in the Washington, D.C. office of Ogletree Deakins.