Employment Moves Biden Could Make within His First 100 Days: Part 1

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Attorney Harrison Oldham

Many of us are looking forward to 2020 coming to an end and jumping into the fresh start that 2021 promises.  However, while we wait patiently with thoughts of vaccines, handshakes, and sugarplums dancing in our heads, and with what could be in possibly the most celebrated New Years’ Eve in history around the corner, one other change we must consider is that of the new Presidential administration’s views on laws of the workplace.

While the states have a tremendous amount of control over their state level laws, the federal has nearly absolute control on the federal legal framework that underlies the realm of labor and employment law.  With that in mind, let’s look at some of the changes that the new administration could make in its first 100 days. This is part 1 of a 2-part series. 

  1. U-Turn on Joint Employment

It does not take much to determine how President-elect Biden views unions. A quick view of his campaign website shows the following:

Strong unions built the great American middle class. Everything that defines what it means to live a good life and know you can take care of your family – the 40 hour workweek, paid leave, health care protections, a voice in your workplace – is because of workers who organized unions and fought for worker protections. Because of organizing and collective bargaining, there used to be a basic bargain between workers and their employers in this country that when you work hard, you share in the prosperity your work created.

As such, many commentators expect to see far-reaching changes in the labor law arena.  One such change will likely be around the “joint employer test.” In 2015 the National Labor Relations Board issued a controversial mandate that heightened the chances of businesses being held accountable for actions of affiliated entities, thus forcing them into discussions and negotiations with unions under federal labor law. After taking office, the Trump administration, took steps to limit the reach of the so called “joint employer rule.”  Specifically, the Department of Labor issued a new rule in January 2020 imposing a four-factor test for determining whether two or more businesses may be deemed as the employer for the same worker and liable under the Fair Labor Standards Act. The four-factor test limited joint employer liability to certain specific situations, lowering the chance that employers would be considered joint employers.

In September 2020, a federal judge in the Southern District of New York struck down most of the DOL’s joint-employer rule.  The decision undid one of the Trump Administration key reforms of federal labor policy.

When the Biden administration is empowered, one immediate change could be to stop for the administration to stop defending the DOL’s rule in court – thereby automatically losing any current cases or appeals.  Thereafter, a Biden control DOL is expected to “repeal and replace” the rule with a broader and more amorphous joint-employer standard.

  1. Send Sensitivity-Training Ban to Scrap Heap 

Another of President Trump’s employment law initiatives that may be doomed is the order he issued in September 2020 banning federal contractors from conducting certain types of diversity training that he deemed as “Anti-American.” According to his memo, federal contractors were to “cease and desist from using taxpayer dollars to fund these divisive, un-American propaganda training sessions.” The memo clarified that federal contractors were prohibited from conducing any workplace training that “inculcates in its employees any form of race or sex-stereotyping or any form of race or sex scapegoating” or any view that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.”

This memo promised additional future regulations, which have not yet been provided.  As such, this memo does not currently appear to have the power of an executive order.  But in any case, many commentators expect the memo to be promptly repealed or withdrawn under the Biden administration.

  1. New Life for ‘Blacklist’ order 

The Biden administration can also revive an Obama-era directive known as the “Fair Pay and Safe Workplaces” executive order. This will require bidders for federal contracts to disclose labor law violations. Trump halted the order early in his administration. By requiring disclosure of federal labor law violations, the policy gave a bad reputation to companies who were accused and or convicted of violating the laws. The policy could potentially change under the Biden administration with the president-elect previously saying that he would “restore and build” upon the Obama administration executive order. The ‘blacklisting’ rule required the federal contractors with multiple violations on their record to identify the violations that “raise[ed] the visibility of their existence to government contracting officers.”

Although the initiative was stopped in Trump’s administration Biden may bring it back, though there is strong opposition from businesses to reinstate it. In addition, Biden’s policy advisers have indicated that the Biden administration would restore the executive order, and expanding it by only awarding government contracts to those contractors that pay at least $15 an hour as their minimum wage, provide families with sustaining benefits, and don’t oppose the unionization of their workers.

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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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