While legal challenges are still working their way through the courts, in all likelihood, President-elect Joe Biden will assume Presidency in January 2021. On the campaign trail, Biden touted an aggressive pro-employee vision for the American workplace. This stands in stark contrast to the pro-employer approach the Trump Administration has taken.
On the legislative front, Biden has advocated for many employee-friendly laws. However, in order to make the sweeping changes promised during his campaign, the Democrats will have to take control of the Senate – an outcome that is dependent on them winning two races set for January 5, 2021 in typically Republican Georgia.
Given the uncertainty of the control of the Senate, Biden’s Administration is more likely to pursue his agenda through executive action. When he takes office, Biden will have the opportunity to appoint a number of administrative positions and issue new executive orders. However, Biden’s ability to work through the executive branch could again be limited if the Democrats fail to take control of the Senate, as many of the most impactful positions require approval of the Senate prior to appointment.
Some of the key changes President-elect Biden will attempt to make when he takes office are described below.
Equity at the Workplace
Biden campaigned on the promise of increased equity in the workplace for members of historically disadvantaged communities. To that end, Biden has endorsed a number of statutes providing employees with new avenues to seek redress from employers.
Biden has expressed support for the Pregnant Workers’ Fairness Act (“PWFA”), the Paycheck Fairness Act (“PFA”), and the Equality Act all of which have been passed by the House of Representatives. The PWFA would require employers to reasonably accommodate pregnant workers even in absence of a disability. The Paycheck Fairness Act amends the FLSA to reduce the ability of employers to defend themselves against pay discrimination claims using the bona fide factor other than sex defense. The Equality Act would prohibit discrimination on the basis of gender identity and sexuality. While the Supreme Court’s recent decisions make much of this statute redundant, it would still place increased data collecting requirements on employers. Biden has also expressed support for raising the federal minimum wage to $15 per hour.
At the EEOC, the Republican majority will last until July 2022. Thus, the Biden Administration’s impact at the EEOC level will initially be limited as the EEOC has the sole authority to initiate or intervene in systemic discrimination litigation. However, when Biden is able to make appointments to the EEOC, employers should expect increased litigation and rulemaking. A Biden EEOC is also likely to give up on legal challenges to EEO-1 data reporting/collection. Biden has also stated that reversing President Trump’s executive order banning federal contractors from engaging in certain types of diversity training is a day one priority.
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