“Obama 2.0”: Attorneys expect major changes to employment law under Biden administration
Overall, the pendulum is likely to swing from an agenda that generally favored employers to one that is more pro-worker.
Major changes to employment law are on the way when Joe Biden is inaugurated as the 45th president of the United States.
“In many respects, we are going to see a new legal trajectory from what we have seen over the past few years,” said Robert Boonin, an attorney with the national law firm Dykema. “Many describe it as something along the lines of an Obama 2.0 or an Obama 2.0 on steroids. There is a feeling by many that the Biden administration will want to mirror or even exceed the California model.
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“We’re going to see some dramatic changes over the next few years. These changes overall will present more challenges for employers. Without saying whether it’s good or bad, it’s really going to change the legal dynamics.”
Boonin and three of his colleagues shared their insights during a December 3 webinar, “What Our Crystal Ball Tells Us May Happen on the Employment Law Front after January 20. 2021.” Several changes will be enacted immediately through executive orders, he said, while others will take longer as they go through the regulatory or legislative process. The panelists agreed that the outcome of the two Senate runoff elections in Georgia will have a significant impact on the scope and pace of the changes.
Changes are expected in several key areas that affect both employers and workers.
Equal employment
President Trump’s executive order in September that banned diversity and implicit bias training by government agencies and contractors may be on life support.
“It was in my mind a highly unusual use of executive order power to ban diversity training,” Arlene Switzer Steinfield said. “It was done under the guise of condemning racial and sexual stereotyping. Most observers agree that this executive order is going to be rescinded very quickly.”
How quickly?
“The way I heard it at a business meeting was that it probably is going to be done in the next day or so once the new president takes office,” Boonin said. “Someone said, `It will be faster than that. That executive order is going to be signed in the limo from the inauguration to lunch.’”
Steinfield expects the Biden administration to push a comprehensive plan to advance equality on the basis of sexual orientation.
“That includes pledges to enact the Equality Act that grants protections to the LGBTQ community,” she said. “It already has passed the House but has been held up without a vote by Senate Majority Leader McConnell. Biden’s agenda is going to include efforts to reinstate the Obama-era guidelines preventing discrimination in areas such as federal contracts, fighting against broad carve-outs in antidiscrimination law on the basis of religious belief, ending the transgender military ban and eliminating LGBTQ homelessness.”
Also look for quick action by OSHA on COVID-19 worker protection.
“It is believed that the emergency temporary standard to protect workers from COVID is being drafted as we speak and could be issued within 15 days of the change of administration,” Steinfield said.
Equal Employment Opportunity Commission
A Republican will continue to lead the commission through 2022, so change may come slower. However, Abad Lopez expects action on several issues related to COVID-19.
“What I do see and have seen throughout the pandemic is that the EEOC has issued advisement guidance regarding reasonable accommodation through the ADA,” he said. “They also have issued guidance on testing and screening confidentiality, going back to the beginning of the pandemic, and constantly updated it. It doesn’t have the force of law, but generally lawyers have relied on it in adopting their employment practices.
“You can expect through 2022 that the EEOC will continue to revise and adapt its guidance as employers determine how to best bring employees back into the workplace and how to implement testing and screening practices that comply with applicable law. There probably will be more aggressive enforcement once there is a switch over to a Biden appointee in that agency.”
Lopez alerted employers to several other issues that could affect their businesses. “Some areas I think employers should continue to watch in the coming years are religious accommodation requests and employers’ obligations,” he said. “LGBTQ discrimination will become more of a priority, and the #MeToo movement probably will be something that is still at the forefront.”
Wages and hour laws
Look for collection of pay data to be revived.
“There was a change under the Obama administration where they started collecting pay data,” Lopez said. “The EEOC under the Trump administration decided to stop collecting this data in 2017. There were some court fights. Right now, the pay data is not being collected, so the question is how it will play out under a new administration. It is anticipated that pay data will be collected at some point.”
Changes to joint employer and independent contractor rules also are likely. “What position will the Biden administration take on joint employer rules?” he asked. “It may revert to the guidance from the Obama administration in 2016, which was an expansive interpretation.” Increases in the minimum wage are more likely to happen at the sate and local level than in Washington.
“A minimum wage increase will not happen quickly,” Lopez said. “It really depends on who controls the Senate. It’s unlikely that if the Republicans control the Senate they would take up a bill to increase the minimum wage.”
Overtime and exemptions
“This is another area where we are going to go back to reversion to Obama 2.0 in a big way,” James Hermon said. “At the very least, we can expect to see the Biden administration push to implement a regulation in which there will be an effort to bump up the amount of the white-collar minimum salary requirement. The fluctuating work week rule is another area where you could see some activity.”
COVID-19 will drive much of the agenda.
“For the first time ever, the majority of the white-collar workforce working is from home,” he said. “How does that impact things like unreported time and overtime compensation that’s not getting paid? It’s more difficult to track, and I think there is going to be a real focus on whether employers were paying their employees accurately during the time they were working from home.”
Overall, the pendulum is likely to swing from an agenda that generally favored employers to one that is more pro-worker. The presenters encouraged employers to closely follow the regulatory and legislative changes that are certain to come and be diligent about compliance. “The key is that employers need to be cognizant of their obligations, even in these uncertain times,” Lopez said.
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