It’s official! (Well, close enough.)
This evening, the Electoral College confirmed Joseph R. Biden as winner of the 2020 Presidential election. Congress will not do an official count of the electoral votes until January 6, and President Trump reportedly intends to continue with his legal challenges to the election, but it is safe to say that President-Elect Biden will be inaugurated on January 20.
Congratulations to the President-Elect, and belated congratulations to all the other candidates who were elected or reelected in November.
Needless to say, we do expect some big changes in the labor and employment arena, even though most will not take place immediately. Here is a quick overview, and we will follow up with more in-depth analysis soon.
Equal Employment Opportunity Commission. The EEOC will have a Republican majority until July 2022, when Chair Janet Dhillon’s term expires. (The new administration will be able to appoint a new chair immediately.) Thus, we wouldn’t expect changes right away, but the agency will eventually gravitate in a more employee-friendly direction, as we saw under the Obama Administration, and toward more aggressive enforcement action against employers. I would expect renewed emphasis on systemic discrimination and litigation against employers in general, renewed emphasis on workplace harassment and equal pay, and high priority given to LGBT discrimination and harassment claims.
National Labor Relations Board. Change here will not be immediate, either. The five-member NLRB currently has three Republican members, one Democrat, and one vacancy. The term of Trump appointee William Emmanuel will expire in August 2021, which would be the first opportunity for President-Elect Biden to get a Board with a Democratic majority. The term of the current NLRB General Counsel, Peter Robb, will expire next November.
The current Board has been very good to employers on a number of issues, including “quickie elections,” micro-bargaining units, and joint employment. We expect that to start rolling back once Democrats retake the majority on the Board.
Safety. The President-Elect has said that he will take measures necessary to beef up the supply of personal protective equipment. We expect to see tougher standards on COVID prevention in the workplace, renewed emphasis on recordkeeping, and more OSHA inspections.
Wage and Hour. The President-Elect favors a federal minimum wage of $15 an hour. We would expect the Wage and Hour Division of the U.S. Department of Labor to rescind the Trump Administration’s relatively employer-friendly regulations pertaining to joint employment under the Fair Labor Standards Act, and generally become more aggressive in its enforcement efforts against employers.
Georgia, we’re looking at you! The extent of the changes that the new administration will be able to make will depend in large part on the outcome of the Georgia Senate runoff elections. If either or both Republicans Kelly Loeffler and David Perdue win, then the GOP will keep its Senate majority and the ability to stall or kill legislation and appointments proposed by the Biden Administration. If both Republicans lose to Democratic opponents Raphael Warnock and Jon Ossoff, then the Senate will be deadlocked at 50-50, but Vice President-Elect Kamala Harris will be able to break any ties. Early voting in Georgia started today, but Election Day is not until January 5.
Much, much more to come!
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.