Workplace Policies Under the Biden Administration: What to Expect


A contentious election has resulted in an uncertain future for workplace policy, a new report from the Littler Workplace Policy Institute said.

The regulatory arm of the employment law firm prepared the report to explore the 2020 election’s impact on employers and workers—but the ongoing controversy over the election has clouded the forecast somewhat.

“As of the date of publication, Joe Biden appears to have narrowly won the presidency, but President Trump has challenged the results in several swing states,” the report noted. “Although all current indices point to a Joe Biden win, should President Trump ultimately prevail, we will issue a separate report explaining what to expect during his second term. It will come as no surprise that the candidates’ labor and employment priorities differ appreciably.”

Much depends on Congress

The report noted that Biden’s ability to enact his agenda will depend to a large degree on whether the Senate remains controlled by Republicans—which is at least somewhat likely.

“If Democrats achieve a political trifecta—i.e., control both chambers and the White House—President-elect Biden would have more tools at his disposal to pursue his ambitious workplace agenda,” the report said. “If Democrats do not gain at least 50 Senate seats, a Republican-majority Senate would serve as a check on his ability to enact laws and make judicial and Cabinet appointments.”

One of the priorities of a Biden Administration would include passage of the PRO Act, a “kitchen-sink” collection of labor law reforms, according to the report. This bill has been passed by the House, but has stalled in the Senate, so control of that body would have a big impact on whether it passes in its current form.

“The stated purpose of PRO Act is to expand unionization, enhance remedies for unfair labor practices, safeguard the right to strike, and permit ‘fair share’ union dues,” the report said. The PRO act could bring some big changes to the workplace, including the so-called “gig economy”—as it redefines concepts such as “employees” and “supervisors” in a more union-friendly way.

In addition, the Biden campaign strongly supported raising the federal minimum wage to $15 an hour. This proposal could be stymied by a Republican-controlled Senate.

Diversity and immigration could be hot topics

The report notes that a Biden administration is likely to revisit many Trump-era regulations for the workplace. Some pronouncements from the Trump administration were seen as an effort to challenge or “chill” diversity programs. The Biden administration will likely take the opposite tack. And again, any legislation on topics such as pay equity, harassment, and sick leave are much more likely to pass if Biden’s party controls the Senate.

The report also discusses the issue of immigration. The anti-immigration stance of the Trump administration had consequences for both illegal and legal immigration, and the reverberations of those policies were felt in many workplaces.

“President-elect Biden’s campaign endorsed fewer restrictions on immigration compared to the Trump administration, citing research suggesting that key sectors of the U.S. economy rely on immigration,” the report said. “President-elect Biden has promised to reverse many of the Trump administration’s policies, to return to Obama-era policies, and to promote a model of offering protections to immigrants both here lawfully and unlawfully. Among his campaign promises was prioritizing family reunifications, reinstating and protecting the Deferred Action for Childhood Arrivals (DACA) program, and rescinding the Trump administration’s ban on travel first instituted in 2017.”

The report covers many other areas of workplace policy, including the ongoing impact of the COVID-19 pandemic and the effect that it has had on employers and employees. “One of the biggest issues to face the new administration and Congress will be the dramatic transformation of the workplace, which is likely to accelerate at an even faster pace due to the COVID-19 pandemic,” the analysis noted. “Biden’s campaign proposed investing $50 billion in workforce training, but to succeed it will be essential to involve the business community to ensure the training addresses the skills needed for the changing workforce, especially amid the current unemployment crisis.”

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