BI’s Article search uses Boolean search capabilities. If you are not familiar with these principles, here are some quick tips.

To search specifically for more than one word, put the search term in quotation marks. For example, “workers compensation”. This will limit your search to that combination of words.

To search for a combination of terms, use quotations and the & symbol. For example, “hurricane” & “loss”.

Login Register Subscribe

Biden administration faces obstacles to revising employment laws

President-elect Joe Biden

It may be awhile before President-elect Joe Biden can fully embark on any plans related to employment law, given the structure of two key federal agencies, the U.S. Equal Employment Opportunity Commission and the National Labor Relations Board.

This is because both semi-independent agencies have a majority of Republican commissioners, whose terms will not expire until midyear 2021 at the earliest. The agencies’ general counsels are also Republicans.

Meanwhile, a host of other employment-related issues will face the new administration, including those dealing with the gig economy, overtime, EEOC funding and the agency’s policy on vaccines.

The Biden Administration’s ultimate success in pursuing its agenda will depend at least in part on whether the Democratic Party will have a majority in the Senate, which rests on the outcome of next month’s pair of U.S. Senate runoff elections in Georgia.

The EEOC has a 3-2 Republican majority with Republican Chair Janet Dhillon’s term not set to expire until July 2022, while the term of general counsel Sharon Fast Gustafson will expire in 2023.

The NLRB has three Republican members and one Democratic member, while the fifth seat remains open. Republican board member William Emanuel’s term expires in August 2021, while general counsel Peter Robb’s four-year term expires in November 2021. The general counsel post plays a central role in the policies the agency pursues.

The historical trend has been for federal agencies including EEOC and the Department of Labor to be active under Democratic administrations, experts say.

The NLRB, in particular, is known for flipping back and forth between pro-Republican and pro-Democratic policy issues depending on the administration, said David Barron, a member of Cozen O’Connor P.C. in Houston.

At the EEOC, one major issue likely to be confronted is whether COVID-19 vaccines can be mandated by employers, said Andrew Doherty, Valhalla, New York-based national executive and professional risk solutions practice leader for USI Insurance Services LLC.

He said an indication of its possible policy is the agency’s 2009 guidance in connection with the swine flu, in which vaccination was encouraged but not required, with employers obligated to provide reasonable accommodations based on workers’ disability status or religious beliefs.

That guidance has recently been updated but did not focus on a vaccine.

Heidi Reavis, managing partner with Reavis Page Jump LLP in New York, who represents both employers and employees, said one of the first things the Biden Administration will  focus on “is trying to reverse some of the practical impediments that exist at the EEOC.”

She said the number of its investigators has been cut back by as much as half in recent years despite a wave of additional claims stemming from COVID-19 and the Black Lives Matter movement.

One tool at President-elect Biden’s disposal will be executive orders.  He is expected, for instance, to issue his own executive order reversing one issued by President Trump in September that forbids employee training by the federal government and federal contractors and subcontractors that addresses unconscious racial or sexual bias, said Lawrence Lorber, labor and employment counsel at Seyfarth Shaw LLP in Washington.

Observers also say they anticipate a more aggressive Occupational Safety and Health Administration under the new administration. 

“I think probably one of the immediate priorities of the Biden-Harris administration” will be pushing for adoption of an OSHA emergency standard for COVID-19, said Ryan A. Glasgow, a partner with Hunton Andrews Kurth LLP in Richmond, Virginia.

 “A number of states have done that already,” he said, but OSHA’s guidance to date “has been very limited.”

Mr. Biden has appointed former OSHA head David Michaels to his Transition COVID-19 Advisory Board.

Many observers expect the Biden Administration to be active on the issue of making it easier for independent contractors, including gig economy workers, to be considered as employees.   

A change with respect to gig workers would have a significant effect in the employment arena, affecting many federal agencies and statutes, said Suellen Oswald, a principal with Jackson Lewis PC in Cleveland.

Another priority will be pay equity and pay discrimination issues, experts say. That was one of the priorities of the Obama-Biden Administration “and Biden was very vocal about those issues,” Mr. Glasgow said.

Tiffany Brosnan, a partner with Snell & Wilmer LLP in San Diego, said she believes a national sick leave law will eventually be implemented. She said the federal government “dipped its toes in” with the Families First Coronavirus Response Act, set to expire at the end of this month, and that she expects “this administration to dive in all the way.”




Read Next

  • NLRB rule change raises worker safety questions

    (Reuters) Some contract workers in America's fast-food restaurants, hospitals and warehouses could find it harder to demand equipment and other measures to protect them from the coronavirus under a new labor agency rule, according to workers' advocates and unions.