Employment law likely to shift to pro-worker under Biden, experts say

Daryl Moore, BridgeTower Media Newswires

With President Joe Biden’s administration in Washington now entering its second month, legal experts are getting at least a sense of the new direction labor issues are likely to take.

“From an employment law perspective, Biden got off to a fast start. Now we are in sort of a wait-and-see’ mode,” said Melissa Calhoon Jones, Employment Law/Business Immigration Attorney for Tydings & Rosenberg LLP. Jones chairs the firm’s employment and labor law group and counsels small and medium-sized companies on labor, employment and immigration matters.

Jones said, the Trump administration, through the federal Department of Labor, had issued a flurry of opinion letters and new regulations in its final days. But when President Joe Biden took office, he issued a regulatory freeze order, which means that the new regulations will not take effect as scheduled.

“One of the main regulations the Trump administration attempted to establish was a new test for independent contractor classification that would have eased the ability to qualify for that classification (in states where state law itself does not impose stricter requirements),” Jones said. “Easing that classification would have made it easier for workers to be denied the protections of employment laws such as the Fair Labor Standards Act and the Family Medical Leave Act. To the extent that proposed standard was adopted by other agencies in their regulations, there could have been a real erosion of employment protections.  But the new regulations were frozen and are unlikely to take effect during the Biden administration.  In the days after the inauguration, the Department of Labor also withdrew three opinion letters aimed at tip pooling and independent contractor classification issues.”

Now that Trump-era regulations are halted, Biden is starting to introduce his own.

“The Biden campaign promised getting Americans back to work in good jobs,” said Natasha Nazareth, who is of counsel to McMillan Metro, P.C., with more than 20 years of experience in corporate & business law, employment law & litigation and education Law.  “To that end, workers should expect an era of worker-friendly laws, such as raising the minimum wage to $15/hour.”

Workers’ rights are equally important.

Jones said that Biden’s nominations of Marty Walsh as secretary of labor and Julie Su as assistant secretary seems to be a strong push for employee protections.

“Both have strong ties and support from organized labor, and we know that President Biden is a strong supporter of worker rights, labor and union organizing,” Jones said.  “We see this as well in other parts of DOL. OSHA falls under the Department of Labor and they have finally issued stronger guidance for workplace safety, which is an important change.  The lack of specific leadership from OSHA has been a problem for employers.”

This is also seen in changes at the National Labor Relations Board too, Jones said. The board has begun taking action on prior guidance that imposed restrictions on organizing efforts and other processes. She said the previous administration was pro-management while the new one may lean pro-employee.

“The pro-management guidance was very helpful to those of us who work for management,” Jones said. “We can expect board policy and decisions to swing back in favor of employees. Moreover, we may see an uptick in union organizing and collective bargaining – the president’s actions show support for that. Elections and collective bargaining could speed up, too. If we return to Obama-era policies, things like handbook policies and employees being able to use employer email in organizing may become issues again in private-sector employment.”

Jones said the area of civil rights protections and a more inclusive workforce are other areas that may likely see changes. She also noted the return of transgender members in the military, undoing the ban on certain kinds of diversity training and a Biden executive order that aims to root out systemic discrimination in federal agencies and programs.

Nazareth sees inclusiveness and diversity being important priorities, too.

“Biden is promoting unity,” she said. “Under Trump’s executive order of diversity training or bias training, you couldn’t address implicit or explicit bias, but you will be able to under Biden. Allowing companies that do business with the federal government to do diversity inclusion training in a way that meets the company’s needs is a tool for companies to reduce risk for discrimination and harassment in the workplace.

The Biden administration is also opening up H-1B visas, which would allow companies to hire foreign talent, Nazareth said. That’s important for the tech industry, scientific work and health care.

“Biden supports workers,” Nazareth said. “Better working conditions are driven by healthy families, and a healthy workplace culture drives profitability and growth.”

But, as Jones reiterated: “As you can see, it’s all ‘reading tea leaves’ at the moment.”