On Monday, December 14, electors will gather in every state and in Washington D.C. to cast their Electoral College votes. The outcome of that vote will almost certainly start the final countdown toward significant changes in labor and employment law under the incoming Biden administration. While we do not yet know the full extent of these changes, commentators predict that some of the most significant may include the following:
- Overtime Changes – The Department of Labor under the Biden Administration is expected to increase the minimum salary level for most exempt employees to as much as $47,000, while also changing the duties tests for the executive, administrative and professional exemptions.
- Union Protections – President-elect Biden has expressed support for federal legislation that will make it much harder for employers to resist union organizing efforts, including the Protecting the Right to Organize Act, which the U.S. House of Representatives passed during 2020. Among other things, this Act would prohibit right to work laws, bar employers from permanently replacing strikers and allow employees to sue their employers in federal court over alleged unfair labor practices.
- Minimum Wage Adjustments – Depending upon the outcome of the upcoming Georgia Senate run-off election, Congress under the Biden Administration may revisit the Raise the Wage Act that the House of Representatives passed in 2019. This Act would increase the minimum wage to $15 per hour over a six-year period and would index it to inflation. The Act would also phase out the reduced minimum wage that certain tipped employees currently receive.
- Immigration Changes – The Biden administration is expected to make it easier for employers to add skilled foreign labor to their workforces by adjusting the limits on high-skilled visas and modifying visa limits linked to specific countries. The Biden administration is also expected to restore the DACA and TPS programs.
- Equal Employment Opportunity Laws – Whether through legislation, executive order or action by agencies such as the EEOC, the Biden Administration is expected to enforce the workplace EEO laws aggressively. Enforcement priorities will likely include the prohibitions on discrimination based on sexual orientation and gender identity.
- Paid Leave Laws – President-elect Biden has long supported the expansion of paid leave for employees in the public and private sectors, and although its may face stiff resistance in Congress, many expect that the administration will press for 12 weeks of paid leave for many of the events that fall under the existing unpaid FMLA provisions.
The coming year is sure to be a time of change, and employers will be well-served to stay informed and adjust their policies as necessary.