As President-elect Joe Biden prepares to take office in January, employers across the nation are best advised to prepare for the likely changes coming under his administration. Biden himself made that very clear on the campaign trail when he pledged to “check the abuse of corporate power over labor” and to “hold corporate executives personally accountable for violations of labor laws.”
While significant changes through Congressional legislation over the next two years will depend on how the runoff elections in Georgia for the last two undecided U.S. senate seats turn out (both seats need to go to Democrats for Biden’s party to wrest control from the Republicans), there’s still much Biden can do through department and board appointments, as well as executive orders.
As president, Biden will have the ability to reshape the composition of the five-member National Labor Relations Board. He will be able to fill a current vacancy with a like-minded candidate when he takes office, and there will be another available seat in August 2021. At that point, he’ll have a three-to-two liberal, progressive board, and he will be poised to reverse changes made during Donald Trump’s administration with the goal of reverting to standards established during President Barack Obama’s tenure.
One anticipated change on Biden’s short list will be how the Board interprets joint-employer status among franchisors and franchisees as owners versus operators. For example, in the hospitality industry, the hotel employer tends to be the hotel manager – if the owner is not the manager, it is often a brand company or third-party operator. If joint-employer status is broadened, new rules could hold a franchisor or owner liable for violations of labor laws, such as unfair labor practices or wage claims.
To avoid exposure to joint-employer status, owners and companies using third parties to provide employees for certain operations need to be sure that all employee-related decisions are made by the vendor. Management-level employees of the company should not oversee these third-party workers at all. A business could safely retain the right to terminate the contract if the third-party employees aren’t doing the job well, but that would be a matter between the business and the vendor, not the specific employees.
Biden has made no secret of his support for unions, and members of his cabinet and administration will almost certainly be union supporters with similar philosophies. The Biden administration will come in with union-friendly policies as seen during the Obama administration, as there will likely be an increase in union organizing in service-related industries, such as health care and hospitality.
During the pandemic, union organizing slowed down because it wasn’t been feasible under those conditions; as conditions improve, service-related industries will be vulnerable to increased unionization based on safety and health care issues, as well as furlough and layoff issues.
One of the first agencies that will see more activity will be the Occupational Safety and Health Administration (OSHA), particularly with all of the current workplace safety issues related to COVID-19. With today’s focus on worker safety, OSHA’s enforcement of safety rules could likely come sooner than any other kind of enforcement.
Other Areas Of Likely Change
We certainly expect that positive changes in immigration policy, increases in the minimum wage, and other employee-friendly laws will emerge under the Biden administration, especially if the House and Senate are both led by the Democratic party at some point during his presidency. We will continue to alert our clients as these changes become imminent and manifest.
JMBM’s Labor and Employment attorneys counsel businesses and management on workplace issues, helping to establish policies that address problems and reduce job-related lawsuits. We act quickly to resolve claims and aggressively defend our clients in all federal and state courts, before the Department of Labor, the NLRB, and other federal, state and local agencies, as well as in private arbitration forums. We represent employers in collective bargaining negotiations and arbitration.
This update is provided to our clients, business associates and friends for informational purposes only. Legal advice should be based on your specific situation and provided by a qualified attorney.