A labor law prognosis
By Andrew J. Adams, Esq.
After a highly competitive election, President-elect Joe Biden has started his transitional work and made plans that have the potential to hit business owners across the country.
As expected, many of these changes are in favor of the employee as opposed to the employer. However, some plans should help small businesses. While the future is difficult to predict, we can make solid predictions of what employers can expect from the Biden administration.
Occupational safety and OSHA
Andrew J. Adams
The most immediate impact on employers is likely to be the push for the Biden government to enact emergency standards that require employers to develop safety plans in response to the COVID-19 pandemic. Under the current administration, OSHA conducted the lowest number of inspections in the agency’s history and reduced the number of inspectors on staff to the lowest level in 40 years.
Biden will look into these guidelines immediately, which will lead to increased inspections and enforcement actions, as was the case under the Obama administration. This means employers are likely to face tougher penalties for violations and higher fines than they have over the past four years.
It is also likely that employers will encounter the Obama administration’s return to the Obama administration’s safety reporting rule. This would require certain employers to report disease and injury information to OSHA, which is then stored online as publicly available information.
Hourly wage law
President-elect Biden’s campaign said he would try to close the pay gap between black and white workers, make it easier for workers to prosecute discrimination claims and press for a higher minimum wage. The administration would increase the funds allocated to the Equal Opportunities Commission, the federal agency tasked with enforcing laws on discrimination in the workplace.
“The most immediate impact on employers is likely to be a push by the Biden government to enact emergency standards that require employers to develop job security plans in response to the COVID-19 pandemic.”
In an amendment expected to be immediate, Biden is expected to lift President Trump’s order to ban training for federal agencies and contractors that contain “offensive and anti-American racial and gender stereotypes and scapegoats”. The Executive Order banned training on a variety of topics and recommended searching keywords such as “white privilege”, “systemic racism” and “unconscious bias” to determine whether training was inappropriate under the regulation.
Employers can also expect a push for a minimum wage of $ 15 at the federal level. During his campaign, Biden called for an increase to a minimum wage of $ 15 by 2026. Another likely outcome is an increase in enforcement and compliance measures against employers for violating wages and hours, as well as increased penalties.
In a sequel to the first law passed by the Obama-Biden administration (the Lilly Ledbetter Fair Pay Act), Biden will also prioritize ending paycheck discrimination, as evidenced by his strong support for the Paycheck Fairness Act which would amend federal equal pay laws requiring “some good faith factor other than gender, such as education, training, or experience” to give different wages to men or women doing the same or similar work; Protecting workers from retaliation for discussing wages; and prohibit the use of salary history in the hiring process.
Aside from that, Biden also supports federal legislation that allows 12 weeks of paid vacation leave for workers for their own or the serious health of a family member.
Small businesses
Biden plans to restructure the existing paycheck protection program by adding oversight and a clearance guarantee for eligible companies with 50 or fewer employees. The plan also includes measures to improve small business access to capital through an initiative called the Small Business Opportunity Fund.
immigration
The president-elect has proposed a 180 degree turn away from the current government’s immigration policy. The Biden Plan would provide facilitation of legal immigration to the US, including a route to citizenship for the large number of immigrants in the US who do not have legal permanent status, as well as some of those currently working illegally. Biden also suggests removing country-based immigration restrictions and increasing the number of employment-related visas such as the H-1B issued annually, although these may come with stricter regulations.
Discrimination and Harassment in the Workplace
Biden supports the federal law on the fairness of pregnant workers (PWFA), which was passed by the House of Representatives in September but has not yet been approved by the Senate. According to the PWFA, employers would have to adequately accommodate pregnant workers and workers with pregnancy-related conditions and prohibit them from (1) requiring a qualified worker to accept accommodation other than the adequate accommodation obtained through the interactive process; (2) Refusal of employment opportunities for a qualified employee due to the known restrictions in connection with pregnancy, childbirth or related illnesses of a qualified employee; (3) Require a Qualified Employee to take paid or unpaid vacation when other reasonable provision can be made; and (4) take adverse action in relation to conditions or privileges of employment against a Qualified Employee because the Employee is requesting or using reasonable accommodation.
Also on the Biden Harris agenda is support for the BE HEARD Act (Ending Harassment by Improving Accountability and Rejecting Discrimination in the Workplace), which aims to establish a national harassment prevention task force and include multiple mandates for insured employers, including compulsory training on non-discrimination and restrictions on the use of confidentiality and degradation clauses in settlement agreements.
Federal agencies
Employers are likely to return to the friendly days of the Obama administration’s National Labor Relations Board, the agency that enforces U.S. labor law on collective bargaining and suspected unfair labor practices. President-elect Biden will take office and will have the opportunity to submit the board to democratic control within the first year of taking office.
In addition, the administration has reiterated strong support for the Right to Organize (PRO) Act, a key law that envisages major reforms, including the imposition of substantial fines on companies that violate labor law. The Biden Harris campaign page also promises to “go beyond the PRO Act by enacting laws to impose even stricter penalties on companies and hold company executives personally liable for disrupting organizational efforts, including criminal liability if they interfere is intended.”
All in all, employers should be prepared for much more worker-friendly changes over the next four (or eight) years.
Andrew Adams is an attorney with Skoler, Abbott & Presser, PC, Springfield; (413) 737-4753; [email protected]
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