10 labor and employment changes to expect in the next two years

Prior to November, most polls predicted a strong Democratic sweep establishing a mandate for Democrats to implement their agenda through Congress. Election Day yielded a much different result, with a Biden win, but Republican gains in the House and what appeared would be a slim Republican majority in the Senate. Surprisingly, after the election conspiracies and the January 5 Georgia runoffs, the Democrats won a Senate majority with Vice President Harris casting the deciding vote.

What does the narrow Democratic Senate majority mean for labor and employment/? The Democrats’ margin in the Senate is smaller than in 2009 when Obama became President with a slightly larger Democratic majority. The filibuster blocked most of the Democrats’ progressive legislative action in the Senate, such as the Employee Free Choice Act, and most labor and employment law changes came through administrative action.

Related: 11 key pieces of Biden’s $1.9T stimulus plan

The next two years will likely play out similarly to 2009 to 2011. Democratic Senator Harry Manchin of West Virginia has stated publicly that he will not cast a procedural vote to end the Senate’s 60-vote filibuster rule, and his vote is needed. If a filibuster holds up important progressive legislative items, Manchin will likely face extreme pressure from his Democratic colleagues. If the filibuster rule remains, most progressive Democratic legislative goals such as a nationwide $15 minimum wage and the Protecting Right to Organize (PRO) Act will fail to pass.

All things considered, below are the top 10 changes to anticipate in the next two years of the Biden administration from least to most likely:

1. Paid sick leave

Biden’s agenda called for 12 weeks of yearly paid family and medical leave, which is not likely to pass a divided Congress. However, last year Congress approved two weeks of paid Emergency FMLA leave, possibly acclimating some Republican Senators to a limited amount of paid medical leave, such as two weeks of annual paid medical leave for employers of a certain size.

2. Removal of Trump guidance and regulations 

The new administration has already begun the process of rolling back Trump guidance and regulations. The DOL withdrew midnight Trump DOL opinion letters related to tip pooling and employee classification. Biden has stopped progression of the independent contractor rule, which made easier employers classifying “gig economy” workers as independent contractors. Biden’s DOL is likely to issue new regulations amending or rescinding Trump’s tip pooling regulations and reverting to the former rules, which do not allow “back-of-the-house” workers to participate in tip pools. Other Trump-era standards that could be reversed soon include guidance on illegal card-check and neutrality agreements and the fluctuating workweek method regulations.

3. Return to the Obama FLSA white-collar exemption threshold

After President Obama’s Fair Labor Standards Act (FLSA) regulations setting the salary threshold regulations for white-collar overtime exemptions at $47,476 was enjoined, the Trump administration issued regulations setting a new salary threshold of $35,308. Biden’s labor agenda included another increase to the salary threshold, and it is likely the DOL will unveil regulations seeking a return to the Obama threshold (or higher) during Biden’s term in office.

4. Increased OSHA enforcement 

The number of OSHA enforcement personnel, inspections, and the amount of penalties declined during the Trump administration. Expect Biden’s OSHA to significantly increase the number of inspectors in the field office through hiring and training. The number of new inspections, both for COVID-19 safety concerns and otherwise, will increase, as well as the number and amount of penalties issued for OSHA citations.

5. Incremental federal minimum wage increases

A $15 minimum wage is unlikely to obtain majority support in the Senate, much less the necessary support to overcome a filibuster. However, incremental increases to the current $7.25 federal minimum wage may attract even some Republican support if the parties are willing to compromise.

6. EEOC reporting

The Biden EEOC is likely to implement new reporting requirements for employers to track wage and salary data by position based on race and gender to attempt to foster increased pay equality.

7. Ambush election rules 2.0

In December 2019, the Republican NLRB issued new rules mostly displacing Obama’s 2014 “ambush” election rules, which shortened the time before a certification election is held after the filing of a representation petition and left most of the representation questions to be resolved after the election rather than before. The Biden NLRB is likely to adopt rules similar to the “ambush” rules, after a Democratic Board majority is established this fall.

8. Return of the revised LMRDA persuader rules

During the waning years of the Obama administration, the DOL revised the Labor Management Reporting Disclosure Act (“LMRDA”) “persuader” disclosure rules to broaden the number of companies and individuals who were required to file LMRDA disclosure paperwork. The proposed regulations revised the “advice” exception, which had previously held that consultants or attorneys, only providing advice to employers and not directly persuading employees, were not required to file disclosures under the Act. The proposed regulations never took effect. To fulfill its strongly pro-labor agenda, the Biden DOL is likely to attempt to reinstate the revised persuader rules, making organizing campaigns more difficult for employers.

9. $15 minimum wage for federal contractors 

Biden has already issued an executive order directing his administration to start work on an executive order to require a $15 minimum wage for all employees of federal contractors within the administration’s first 100 days. Federal contractors, including cleaning and food service employees, will likely face a required $15 minimum wage for all their employees.

10. Temporary OSHA COVID rule

On Jan. 21, 2021, President Biden issued an executive order directing OSHA to issue new guidance to employers on workplace safety during the COVID-19 pandemic within two weeks, and to evaluate issuing a temporary standard for protecting workers from the Coronavirus. On Jan. 29, 2021, OSHA issued new guidance on protecting employees from COVID-19. Thus, the first significant changes employers are likely to see from the Biden administration are new COVID-19 OSHA guidance and rules and increased enforcement.

Ron Flowers is a partner in Burr & Forman’s Labor & Employment Practice Group. He represents management in all aspects of labor and employment law. He may be reached at rflowers@burr.com.