Well, Tuesday was the big day. After much deliberation and soul-searching, the Buzz decided to go with an Italian sub. More seriously, at the time of this writing, it looks like former vice president Joe Biden is heading to the White House while Republicans may hold on to the U.S. Senate (more on this below) and Democrats will hold on to the U.S. House of Representatives. Let’s take a quick look at what this could mean for employers in 2021.
Executive Action. Every president has a pen and a phone and Biden would undoubtedly make quick use of each to revoke President Donald Trump’s executive orders and issue his own. Easy targets for revocation are the scores of immigration-related orders that President Trump issued over the years, as well as the recently issued Executive Order on Combating Race and Sex Stereotyping.
On the proactive side of things, Biden would likely restart the Deferred Action for Childhood Arrivals (DACA) program if Congress does not act on this issue.
Divided Congress. Legislative gridlock in Washington, D.C., is nothing new—President Barack Obama dealt with it during the last six years of his presidency. This is what we can expect to deal with for the first two years of the Biden administration.
- No-go on PRO. With Republicans apparently having retained their majority in the Senate (though two Senate runoff elections in Georgia on January 5, 2021, may change the equation), the immediate possibility of Democrats scrapping the filibuster and advancing major labor and employment legislation such as the Protecting the Right to Organize (PRO) Act is remote.
- CRA goes away. A Democratic Party–aligned Senate and White House would have allowed Democrats to rescind President Trump’s so-called “midnight regulations” through use of the Congressional Review Act (CRA) (though the CRA could come into play if a few Republicans break ranks). Regulations that would have been targeted include a pending U.S. Department of Labor (DOL) regulation on independent contractor status under the Fair Labor Standards Act. The Trump administration will now likely try to finalize this and other pending regulations on its way out the door.
- Nom Nom Nom. Since 2017, Senate Majority Leader Mitch McConnell (R-KY) has spent much of his time confirming nominees for the executive branch and federal judiciary. Obviously, the landscape beginning in 2021 will be a little different with a newly inaugurated President Biden making the nominations. It is likely that Biden will be forced to somewhat temper his nominees—to both the courts and agencies—in order to get them through a potential Republican-controlled Senate.
Executive Branch Agencies and Regulations. While Senate Republicans could stymie Biden’s legislative agenda, Biden would still have the entire executive branch to implement many of his desired policy changes. This is where most of the policy bread gets buttered these days anyway.
- U.S. Department of Labor. Expect the following from a Biden DOL:
- A COVID-19-specific workplace safety emergency temporary standard will be a priority as long as the pandemic continues.
- There will likely be a significant uptick in enforcement, specifically with regard to workplace safety and COVID-19–related complaints.
- The Wage and Hour Division will likely implement a “repeal and replace” agenda with respect to regulations addressing overtime, joint employment, and independent contractor status.
- National Labor Relations Board (NLRB). Republicans will maintain a majority at the NLRB into the summer of 2021. Once Democrats gain a majority, they may be expected to roll back current Board policies and return to policies that favor organized labor. This would include rescinding the Board’s joint-employer regulation and election procedure changes, as well as reversing Board decisions over the last several years on issues such as employer property rights, employee discipline, fractured bargaining units, and the like.
- U.S. Equal Employment Opportunity Commission (EEOC). Though the Commission chair will likely change immediately, Republicans will retain a majority on the EEOC through at least mid-2022, which will impact how the Commission addresses matters such as finalizing a conciliation regulation, finalizing a rule on employer-sponsored wellness programs, and determining the utility of pay and hours-worked data.
- Immigration. A Biden administration can be expected to restore DACA and certain temporary protected status designations. A Biden administration would also likely reaffirm a rule allowing employment authorization for certain H-4 spouses of H-1B nonimmigrants. Caution is warranted, however, when it comes to other issues concerning high-skilled nonimmigrant visas. Skepticism about these high-skilled programs is bipartisan, and while a Biden administration would likely ease off the gas a bit, don’t expect administrative scrutiny to disappear entirely.
Divided Senate. As mentioned above, it is possible that we could end up with a Senate comprised of 50 Republicans and 50 Democrats. In that case, Democrats would technically be in control, as likely Vice President Kamala Harris would cast tie-breaking votes. But things get complicated with regard to the day-to-day operations of the Senate, composition of the various committees, and the like. In this scenario, Senator McConnell and Senator Charles Schumer (D-NY) would likely look to the Senate of 2001–2002 (of the 107th United States Congress) for guidance. This is the Senate that convened after the controversial 2000 presidential election, and it was the last time that we had a 50–50 split in the upper chamber. At that time, Republican Trent Lott of Mississippi and Democrat Tom Daschle of South Dakota created a power-sharing agreement that divided committee membership, as well as staffing and resources, equally. Because Vice President Dick Cheney technically gave Republicans a majority, Republicans controlled the committee chairs and the legislative docket. Of course, in May of 2001, Vermont Republican James Jeffords switched parties to become an Independent caucusing with the Democrats. This transferred control of the Senate to the Democrats—the first time that party control had formally shifted in the middle of a two-year congressional term.