Businesses were already expected to acclimate to rapidly changing regulations and workforce demands, and the COVID pandemic has heightened those expectations even more. This has led many business owners to wonder what additional changes are on the horizon. The recent change in presidential administration has also led many employers to consider how prepared their organization is for impending legislation.
In this post, we’ll cover some anticipated changes employers may encounter over the next two years in the worlds of labor and employment. The specific changes that we’ll discuss include:
- Expanded Occupational Health and Safety Administration (OSHA) Enforcement
- Federal Minimum Wage Increases
- Labor Management Reporting Disclosure Act Persuader Rules
- Expanded Equal Employment Opportunity Commission (EEOC) Reporting Requirements
- Temporary OSHA COVID Rules and Guidance
- Paid Sick Leave Changes
- Removal of Key Trump Regulations
- Return to the Obama-era FLSA White-Collar Exemption
Expanded OSHA Enforcement
Under Trump’s presidency, the number of OSHA audits, inspections, penalties, and overall enforcement personnel decreased from year to year. As is the case for many Trump-era regulations, this trend is likely to reverse under President Biden. You can expect Biden to direct OSHA to hire more enforcement personnel, and to conduct more inspections. With more inspections, you can expect OSHA to be handing out more penalties as well. These increased inspections will be related to COVID as well as other occupational safety concerns.
Federal Minimum Wage Increases
President Biden has long been a proponent of a higher federal minimum wage – specifically $15/hr. This increase, which would more than double the current $7.25 federal minimum wage, will face an uphill battle of legislation. However, incremental increases over the next several years may be agreed on through a compromise across party lines, so employers should start preparing for this very real possibility.
Another minimum wage order that Biden has already issued is to direct his administration to start working on a $15 minimum wage for all employees of federal contractors. His plan is to implement this executive order within the first 100 days of his presidency. Examples of such contractors include cleaning and food service employees.
Labor Management Reporting Disclosure Act Persuader Rules
Towards the end of the Obama Administration, the Department of Labor revised the Labor Management Reporting Disclosure Act (LMRDA) “persuader” disclosure rules. Although these revisions never took effect, their intention was to broaden the scope of companies and individuals that had to file LMRDA disclosure paperwork. This would have removed the “advice” exception, which held that consultants or attorneys who only provided advice to employers (not directly persuading them) were not required to file disclosures under the LMRDA. Biden is very likely to try to make this revision again and reinstate the revised persuader rules.
Expanded EEOC Reporting Requirements
Your organization should begin preparing to track and report on wage and salary data based on race and gender. The EEOC under President Biden will most likely implement new reporting requirements to improve pay equality in the United States.
Temporary OSHA COVID Rules
One of President Biden’s first executive orders, which he signed on January 21, 2021, was to direct OSHA to provide new guidance to employers to help them improve workplace safety during the ongoing COVID-19 Pandemic. OSHA responded quickly to this order and issued new guidance on January 29, 2021.
This guidance can be summarized into the following themes:
- Hazard assessments
- Measures to limit the spread of COVID-19
- Isolation or separation measures of infected workers from the workplace (physical distancing, installing barriers, or staying home)
- Use of personal protective equipment
- Improvements in ventilation, hygiene, and sanitation measures
- Industry specific guidelines.
Paid Sick Leave Changes
Biden has long been an advocate of 12 weeks of annual paid family and medical leave. However, experts are skeptical about the feasibility of such legislation. Last year, Congress approved two weeks of paid emergency FMLA leave. This new paid leave might push some Republican senators to warm to the idea of providing further paid leave.
Removal of Key Trump Regulations
Since day one of his administration, President Biden has been rolling back or removing some key Trump regulations. Examples include:
- Withdrawing Trump-era Department of Labor opinion letters on the topics of tip pooling and employee classification.
- Freezing the independent contractor rule. Under this rule, it was easy for employers to classify “gig economy” workers as independent contractors.
- The Department of Labor under President Biden will most likely roll back Trump’s tip pooling regulations and revert back to the former rules. The former rules do not allow “back-of-the-house” workers, like restaurant kitchen staff for example, to participate in tip pools.
Return to the Obama-era FLSA White-Collar Exemption
Under President Obama’s Fair Labor Standards Act regulations (FLSA), the salary below which workers are entitled to overtime was raised to $47,476. Trump lowered this amount back down to $35,308. Employers can expect that during the Biden Administration, this amount will increase back up to Obama levels, or potentially even higher.
Key Takeaways
Employers can expect many changes over the next two years in the worlds of employment and labor. Most of these changes are a result of the recent change in presidential administration. President Biden will be reversing many of the regulations and executive orders that President Trump put in place. Many of these changes will bring back Obama-era regulations, although there will be some differences.
The most important changes that employers can expect fit into these categories:
- Expanded Occupational Health and Safety Administration (OSHA) Enforcement
- Federal Minimum Wage Increases
- Labor Management Reporting Disclosure Act Persuader Rules
- Expanded Equal Employment Opportunity Commission (EEOC) Reporting Requirements
- Temporary OSHA COVID Rules and Guidance
- Paid Sick Leave Changes
- Removal of Key Trump Regulations
- Return to the Obama-era FLSA White-Collar Exemption