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117th Congress Preview: Labor

By Erin Graefe Dorton

The Biden campaign pledged to “[e]ncourage and incentivize unionization and collective bargaining”; “[e]nsure that workers are treated with dignity and receive the pay, benefits, and workplace protections they deserve”; and “[c]heck the abuse of corporate power over labor and hold corporate executives personally accountable for violations of labor laws.”

Through that lens, the Biden Department of Labor is likely to shift direction on many fronts. Employers should expect a more employee-friendly direction for labor and employment law and should be preparing for changes ranging from joint-employer issues to changes to the Office of Federal Contract Compliance Programs (OFCCP) as well as Occupational Safety and Health Administration (OSHA) action, just to name a few. Keeping in line with his assertions that he is a union man and wants to be a union President, President Biden will soon sign an Executive Order (EO) this week to restore collective bargaining rights to federal employees, initiating action to roll back the Trump administration’s Schedule F EO.  Other EOs may include issues such blacklisting and car-check as well as unfair labor practices.

At the top of the agenda will likely be a review of the joint-employer and independent-contractor rules.   Earlier this month the Trump administration finalized the independent contractor rule which would enable “gig economy” companies to classify workers as independent contractors.  The new administration may use rulemaking to simply rescind the rule or to propose new regulations that would take more of a “worker-protection” interpretation of employee status. In particular, President Biden’s platform notes that the employer classification of “gig economy” workers as independent contractors prevents them from receiving many legal benefits and protections.

In the same vain, the DOL may even revisit overtime standards and issue rules dealing with pay entitlement for off-the-clock work, like checking email from home.

With respect to the OFCCP, on January 20th after his inauguration, President Biden signed an Executive Order (EO) on Diversity, Equity, Inclusion and Accessibility in the Federal Workforce,​ rescinding President Trump’s EO banning diversity training and directs agencies to take action to advance diversity, equity, inclusion, and accessibility.

On the future of OSHA, the position of undersecretary of OSHA was never filled during the Trump administration. We should assume that the Biden administration will move quickly to fill that slot by appointing and having confirmed an undersecretary of OSHA. In light of the pandemic, that person will have to move quickly to issue an emergency temporary standard applicable to the pandemic and place safety requirements on employers to protect employees from COVID-19 risks.

Although he can accomplish a great deal via Executive Order, President Biden’s ambitious labor and employment agenda launched on his campaign, many of his proposals will require Congressional approval.  With a 50-50 Senate, and Vice President Harris as the tie-breaker, he will need all 50 Democrats (including the Independents) on board, which may not be feasible.