Now that the election is over—well, almost—employers are looking more closely at how the Biden Presidency will impact their business, including in terms of employment law. After all, while President Trump is known for his pro-business stance, President-elect Biden is unabashedly pro-worker. What labor issues are under discussion? What can employers expect?
Keep in mind: nothing is etched in stone. While President-elect Biden may be able to make some changes via executive order, many will require Congressional approval. And while the Democrat-led House is expected to partner with the Biden-Harris Administration to forward its agenda, the Senate remains up for grabs.
Currently, Republicans have secured 50 Senate seats to the Democrat’s 48. Who fills the two remaining open seats won’t be determined until January 5, 2021, when Georgia holds its runoff election. Should Republicans maintain control, it will likely prevent the Biden Whitehouse from achieving some of its goals, at least in their current form.
And what are those goals, exactly? Here are six elements of the Biden-Harris platform we’ll be monitoring in the months ahead.
1. A Stronger Affordable Care Act
Earlier this week, we learned that the Supreme Court is unlikely to kill the ACA, making it likely that the Biden Administration will build on the existing law. That may include enhancing coverage for the under/uninsured and tightly regulating short-term, limited-duration health plans. On the group side, it may mean that employers must continue to comply with ACA mandates and reporting requirements, just as you’re currently doing.
2. Expanded Immigrant Visas
President-elect Biden has indicated that he’d like to make both temporary and permanent visas more accessible, particularly H-1B visas for highly-skilled workers. He’s expressed interest in lifting per-country limits on visas and allowing fast-growing cities and counties to apply for greater numbers of visas. This would bode well for employers looking to fill skills gaps.
3. A $15 Minimum Wage
The incoming Biden-Harris Administration supports the Democratic proposal to increase the federal minimum wage from $7.25 to $15 per hour. Similarly, it supports eliminating the reduced minimum wage for tipped employees (aka, the tip credit). Although the federal minimum wage hasn’t increased since 2009—and 29 states already have higher minimum wage laws—any proposals would likely receive pushback from Republicans in Congress.
4. Expanded Overtime Eligibility
President-elect Biden indicated that he’d restore the 2016 Obama-era overtime rule that would increase the salary threshold for exemption from $455 to $913 per week. As you’ll recall, this rule was enjoined shortly before it was to go into effect. In 2019, the Trump-led DOL increased the weekly salary threshold to $684. Should the higher threshold become law, another 2.9 million workers would become eligible for overtime pay.
5. Added Support for Unions
The Biden-Harris platform supports making it easier for workers to organize and engage in collective bargaining. For example, President-elect Biden has expressed support for the dormant Forced Arbitration Injustice Repeal (FAIR) Act, which would prohibit employers from requiring employees to sign pre-dispute arbitration agreements. He also supports the proposed Protecting the Right to Organize (PRO) Act, which would allow the National Labor Relations Board to levy fines against employers who violate labor laws, as well as collecting back pay.
6. Mandated Paid Sick and Family Leave
President-elect Biden has expressed support for the proposed Family and Medical Insurance Leave (FAMILY) Act, which would provide workers with up to 12 weeks of paid medical and family leave. In addition, he supports extending the leave provisions of the Families First Coronavirus Response Act (FFCRA), which will expire on December 31, 2020. It’s expected that he would support extending benefits to part-time workers and independent contractors as well.
With all that said…
Naturally, many employers are worried about the increased costs associated with these initiatives. Some leading economists believe that other elements of the Biden-Harris platform—which includes generous spending and robust support for trade, immigration, and manufacturing—will boost our flagging economy and more-than-offset potential cost increases.
For example, Moody Analytics predicts that under the Biden presidency, America will return to full employment faster than under a second-term Trump presidency, largely due to the Trump Administration’s trade war and immigration policies.
Others have noted that, even if Republicans maintain control of the Senate, additional stimulus bills are more likely to be passed under the Biden Administration, which would accelerate GDP growth.
While all of this remains speculation, one thing is clear: workplace legislation will be changing, possibly as early as next year. And as history has taught us, when wage and hour law is in the public eye, workplace litigation rises—so be prepared.
Right now, the best steps employers can take is to ensure they’re compliant with current labor legislation and that their HR and payroll software can adapt to changes ahead. If you’re not confident your HR software is up to the task, checkout EPAY HCM. Our specialty is helping employers with an hourly, distributed workforce maintain compliance and operate cost effectively—and we invite you to see how we do it!