As the Democratic party looks to assume control of the House after the 2020 US elections, employers and employees are carefully watching what a Biden administration would mean for labor law in the US.
Biden is no stranger to the fact that he is pro-labor and pro-worker. As president-elect, he promises to strengthen worker organizing, collective bargaining, and unions while he’s in office.
Let’s explore some of the top legislative changes that a Joe Biden majority will be looking to enact, as well as the impacts on American employers and employees.
Signing the Protecting the Right to Organize (PRO) Act
Biden is a staunch supporter of the Protecting the Right to Organize (PRO) Act. This act aims to protect workers by:
- Introducing penalties to employers who violate employee rights. Currently, under the National Labor Relations Act (NLRA), there are no fines or penalties for employers who violate workers’ rights. This bill will enable the NLRA to issue significant monetary fines for companies that violate its employees’ rights. It also protects employees by immediately reinstating them through an injunction while their case is pending.
- Expanding collective bargaining rights and closing loopholes that allow employers to take advantage of employees. The PRO Act removes any prohibitions on workers who support strikes or boycotts with fellow workers at other companies. Companies are not allowed to permanently replace these workers who participate in these strikes. This act also closes loopholes like employers who misclassify their employees (i.e. independent contractor vs. employee) to prevent them from receiving full employee rights and protection.
- Protecting workers’ access to fair union elections. The enactment of the PRO Act bill will prevent employers from interfering with union elections. The bill will make it illegal for employers to persuade employees in any form from voting in favor of a union. The employees are free to vote outside of the work premise in a neutral, safe environment.
While the PRO Act was passed in early 2020, the Republican-controlled Senate shot down the bill arguing it hurts employers and violates privacy rights. A Joe Biden administration, along with a Democrat-controlled Senate, would make the passing of this bill much more likely.
Recognizing Card Check
Another important promise Biden has made is to give employees the power to form a union through a process known as “card check.” This process involves employees signing authorization forms (i.e. “cards”) indicating they are in favor of forming a union.
If a majority of the employees in a bargaining unit sign these cards, the union will become the exclusive representative of the employees. The card check process would bypass the current secret-ballot election requirement, making it easier for workers to join unions.
This process was originally introduced by the Obama administration under the Employee Free Choice Act. While the act ultimately failed to pass, Biden will no doubt look to push for a card check policy in his upcoming term as president.
Increasing the Federal Minimum Wage
Biden is promising to raise the federal minimum wage to $15 per hour. Currently, the federal minimum wage is $7.25 per hour and hasn’t changed since 2009.
Each state has its own minimum wage (MW) laws. According to the US Department of Labor, there are:
- 29 States + DC, GU, & VI with higher MW than the current federal MW
- 16 States + PR, CNMI at the federal MW
- 5 States with no MW requirement
Certain states are already pledging to increase their minimum wages to $15 per hour. A Democratic majority will push to apply this minimum wage to all states in America.
Closing Loopholes for Agricultural and Domestic Workers
Farmworkers and domestic workers have historically been excluded from labor protections and rights under the New Deal Era. These workers - many of whom are immigrants - are currently still not protected due to loopholes in the National Labor Relations Act.
Biden has been clear that he will be expanding protection for these workers, ensuring they are covered by federal US employment law. This includes supporting key pieces of legislation, such as the Fairness for Farmworkers Act and the Domestic Workers’ Bill of Rights.
Paid Leave
In response to the COVID-19 pandemic, Biden is supporting universal paid sick days for employees. He supports the Families First Coronavirus Response Act, an act that requires employers to pay sick leave to employees due to COVID-related reasons.
Additionally, Biden is calling on up to 12 weeks of paid sick leave for workers or their family members. The leave can be used for the birth of a child or care for a serious condition suffered by a family member.
Diversity and Unconscious Bias Training
A Biden administration will be looking to overturn President Trump’s Executive Order on Combating Race and Sex Stereotyping. According to Trump, diversity training programs exhibit divisive concepts, race stereotyping, and sex discrimination. The executive order prevents the federal government, federal contractors/subcontractors, and other federal grant recipients from holding any diversity training for employees.
Biden is a known advocate for racial and economic equity. His Build Back Better Agenda states that he is looking to “promote diversity and accountability in leadership across key positions in all federal agencies.” It is highly likely Biden will look to rescind the executive order introduced by his predecessor.
Enacting Biden’s Labor Agenda
With the Democrats winning the House majority, the Senate race is still in question. Depending on what transpires, a runoff election could occur on January 5, 2021, effectively deciding whether the Democrats or the Republicans will gain control of the Senate.
To what extent a Biden administration can realistically enact these labor workplace laws would very much depend on the results of the Senate elections. Regardless, Biden could also leverage various congressional procedures to further his labor agenda.
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