In case you missed it (did anyone miss it?), President Joe Biden was sworn into office yesterday. Although workplace issues are hardly the only pressing item on the new President’s agenda, employers should be prepared for the rollout of additional employee protections under the Biden administration.
Priorities That President Biden Has Already Announced
Extending and Expanding FFCRA Leave
The paid time off provisions of the Families First Coronavirus Response Act (“FFCRA”), which required most employers to provide employees with protected leave for COVID-19-related reasons, expired on December 31, 2020. (Tax credits have been extended through March 31, 2021, however, for employers who opt to continue providing the leave.) President Biden has already announced that he will ask Congress to reinstate the FFCRA’s paid leave provisions through September 30, 2021. The Biden plan further contemplates that nearly all employers – including businesses with fewer than 50 or more than 500 employees, along with the federal government – will be required to provide FFCRA leave, and that healthcare workers and first responders will be entitled to FFCRA leave going forward. Finally, both the amount and the potential duration of FFCRA benefits would increase under President Biden’s plan – up to $1,400 per week for “over 14 weeks” of leave.
Expanding and Supplementing Unemployment
President Biden has announced that he will ask Congress to provide a $400 a week supplement to individuals collecting unemployment through September 2021, and seek to extend unemployment availability to self-employed workers.
Encouraging Hazard Pay for Essential Workers
President Biden has also announced that he will “call on CEOs and other business leaders” to provide back hazard pay to essential workers (and specifically highlights increased profits in the retail and grocery sectors), although there is no indication of new legislation on this topic.
Probable Areas of Focus Under a Biden Administration
The status of “gig workers” as employees or independent contractors is likely to be on the new administration’s agenda. Employers should expect heightened scrutiny of independent contractor relationships (as was the case under President Obama) and a potential for increased penalties under incoming Secretary of Labor Marty Walsh, who previously spent many years as a union leader.
One near-term agenda item may be for the Labor Department to delay, if not pull back entirely, the new independent contractor rules that the Trump administration published earlier this month and that are set to go into effect on March 8, 2021. The new rules, which we wrote about here, are generally considered to be more employer-friendly than existing law in that they make it simpler to classify individuals as independent contractors who are not entitled to minimum wage and overtime under the Fair Labor Standards Act.
Traditional Labor Law
Within hours of being sworn in, President Biden fired National Labor Relations Board (“NLRB”) General Counsel Peter Robb, who was appointed by President Trump and whose term was not set to expire until November 2021, after Robb refused to resign. Robb’s termination signals that President Biden intends to quickly change course on Trump-era labor policy. However, sweeping changes are unlikely to occur until after August 2021, when the term of President Trump’s first appointee to the NLRB expires and the political balance of the Board will shift in favor of Democrats. At that point, the Board can be expected to revisit the Trump Board’s decisions on topics such as employee handbook policies, employee use of employers’ email systems for union organizing, and unions’ ability to organize “micro-units” of small groups of employees.
President Biden has also signaled his support for the Protecting the Right to Organize Act, a union-sponsored bill that would (among other things) codify a number of union-friendly NLRB decisions and election-procedure rules from the Obama era and expand the remedies available to employees who file unfair labor practice charges.
The Trump administration raised the annual salary threshold for exempt employees to $35,568 effective January 1, 2020. President Biden may seek to increase that number, as President Obama did in 2016 when he sought to raise the threshold to $47,476 annually. (A federal judge blocked the Obama rule from taking effect.)
Various Campaign Promises
The Biden administration is expected to introduce federal legislation raising the minimum wage, providing paid sick leave for employees, and bolstering existing pay equity laws. Such legislation, however, is unlikely to provide greater employee protections than the state laws that are already in effect in Oregon and other West Coast states.