Election 2020 Special Report

What Has Happened and What May Happen

November 5, 2020 — This special post-election report is brought to you by Seyfarth's Policy Matters Newsletter. With so much at stake, we have collected the top-of-mind issues to watch as the election results take shape.  Browse the topics below and expand sections for more detail.

The Current State

While the nation hoped for a rapid resolution to this year’s election, it is, after all, 2020, and we should have known better. Indeed, as Charlie Sykes of the Bulwark put it: this election will be decided by the Big Ten, not the SEC. Millions of votes are still being counted in battleground states across the Country, but at this juncture, Joe Biden has a clearer path to the White House than the current President, but it is far from over. While it was understood relatively early Tuesday that the House of Representatives would remain in Democratic control — although apparently with a reduced majority — we learned today that in all likelihood the Senate will remain under Republican control. Thus, while final results will have to be certified and we will undoubtedly have to go through a thunderstorm of lawsuits, it appears that we face four more years of divided government, although now the administration will likely be under control of Mr. Biden and the Democrats. In light of Republican continued control of the Senate, we assume that policy changes will primarily be delivered by executive action, through regulation, or through Executive Order rather than legislation. Because of this, changes will be more nuanced and somewhat slower in occurring. Therefore, this piece will attempt to address some scenarios that may be relevant to employers in a Biden administration, with some discussion of what the Trump administration has done, or would likely do, in the somewhat unlikely case that he prevails.  

As it stands as of the publishing of this piece, the Senate is composed of 2 Independents who caucus with Democrats, 45 Democrats and 48 Republicans, with Sara Gideon’s recent concession to Susan Collins. Democrats picked up two seats with the defeats of Cory Gardner in Colorado and apparent defeat of Martha McSally in Arizona; Republicans flipped a seat with the defeat of Doug Jones. Republicans were also able to hold onto seats in Montana, Iowa, Maine, and South Carolina with Steve Daines victory over Steve Bullock, Joni Ernt, Susan Collins, and Lindsey Graham, all Republicans, able to hold on to their seats. Senator Thom Tillis (R., N.C.) has declared victory in his reelection bid against Democrat Cal Cunningham and Gary Peters is leading in his race in Michigan. That leaves the two races in Georgia, where one Senate race will advance to a January runoff between Republican Sen. Kelly Loeffler and Democrat Raphael Warnock; the other race, between incumbent Republican David Perdue and Democrat Jon Osoff remains too close to call.*

Based on the foregoing, it looks unlikely the democrats regain control of the Senate. Even if the Senate evens to a 50-50 split, and Joe Biden wins, making Kamala Harris the deciding 101st vote, the exceedingly thin margin of power makes it unlikely Joe Biden will be able to press some of his more progressive policy priorities. For example, even in the aforementioned scenario, it would be exceedingly difficult to convince moderate democrats in the mold of, say, Joe Manchin , to vote for example to support the PRO Act as currently drafted. Readers should also be aware of the ever-present filibuster and cloture rules, each of which would necessitate 60 votes and with the Senate in its apparent 2021 configuration, any attempt to abolish the filibuster as it applies to legislation appears to be shelved. 

*Under Georgia law a candidate must receive 50% of the vote or the top two finishers go into a runoff, now on January 5, 2021. As of now, Senator Perdue is slightly above 50%.

Federal Employment Agencies

While the temporal terms are set for the membership of National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”), which Administration ultimately parks in the White House will have significant influence on the policy direction of those crucial agencies. 

Currently, the makeup of the NLRB is as follows: 

  • John Ring (Rep), current chair - term ends Dec 16, 2022; 
  • Marvin Kaplan (Rep) - term ends Aug 27, 2025;
  • Bill Emanuel (Rep) - term ends Aug 27, 2021;
  • Laura McFerrin (Dem) - term ends Dec 16, 2024; 
  • Peter Robb, General Counsel - term Ends  Nov 17, 2021; 
  • one democratic seat remains open.

The EEOC is currently comprised as follows: 

  • Janet Dhillon (Rep), current chair - term ends July 1, 2022
  • Keith Sonderling (Rep), current Vice Chair - term ends July 1, 2024
  • Andrea Lucas (Rep) - term ends July 1, 2025
  • Charlotte Burrows  (Dem) - term ends July 1, 2023
  • Jocelyn Samuels (Dem) - term ends July 1, 2021     
  • Sharon Gustafson, General Counsel - term ends Aug 2023                    

Interestingly, both the NLRB and the EEOC will remain under Republican control for the initial period of a Biden Administration. A Trump Administration would likely see additional membership pressing policies intended to reduce obligations on business. A Biden administration, conversely, would result in eventual Democratic control on the boards of these crucial agencies, which would likely mean attempted rescission of Trump initiatives and replacement with prior Obama era rules and other initiatives set out in the Biden campaign policy agenda. However, notwithstanding the fact that Biden will appoint one of the Democratic Commissioners as Acting Chair of the EEOC, the Republican majority will undoubtedly stop any new initiatives such as resurrecting the Component 2 compensation data collection requirement.  The NLRB primarily is a case deciding agency. However, the NLRB did issue new election regulations reversing the Obama so-called “Ambush Regulations.” If the Democrats take over the NLRB this summer, it perhaps can be expected that the reconstituted Board will quickly move to rescind or change the regulatory regime established by the Republican Board.  Especially as the Senate results makes enactment of the PRO Act doubtful, expect a Biden board to move as expeditiously as it can to reformulate NLRA processes and procedures to open up union organizing and union bargaining authority.

Throughout the entirety of the Trump Presidency, OSHA has operated with a vacancy in its top leadership post — assistant secretary of labor for occupational safety and health. Last year, the President nominated FedEx’s vice president of safety, sustainability, and vehicle maintenance, Scott Mugno, to the top post, but because there was no progress on his confirmation, he withdrew his nomination, leaving Deputy Assistant Secretary of Labor Loren Sweatt in charge of the agency through the remainder of the Trump first term. OSHA has been criticized for a lack of enforcement during the pandemic. The Democrats have long called for OSHA to issue an Emergency Temporary Standard requiring that Pandemic safety guidance be converted into mandatory safety practices. Such a requirement was included in the so-called Heroes Act  —which we wrote about here — passed by the House in May (it was never taken up in the Senate). So a Biden appointee at the Department of Labor and at OSHA can be expected to move quickly on a pandemic initiative.  Also expect reinstatement of the injury reporting regulations and a more aggressive enforcement posture. Publicity of violations would also likely increase as Dr. Michaels — assistant secretary of OSHA under Obama — has touted the importance of deterrence through publication. 

It has been widely reported that, despite their noted policy disagreements, Bernie Sanders would happily accept a position as Secretary of Labor in a potential Biden Administration, an idea endorsed by a number of left-leaning organizations. While Bernie Sanders and Joe Biden have notable policy differences — particularly when it comes to healthcare policy — the two share a focus on workers, expanding health care, and expanding the social safety net. Since losing the primary, and despite their noted differences, Sen. Sanders has been hard at work to elect Joe Biden and influence the Democratic platform. As astute readers of this newsletter are aware, back scratching is nothing new in presidential politics — really, in politics in general — and Sen. Sanders will likely be looking for a scratch in the form of a secretarial appointment for all of his work on the campaign. Indeed, the DOL is a particularly fitting perch for Sanders to attempt to implement his ambitious labor and employment policy agenda. 

The Secretary of Labor holds significant power over policies that affect employers. For example, the Secretary of Labor oversees the enforcement of key laws that require employers to pay workers a minimum hourly wage and overtime, and investigates wage theft and recovery of back wages (between 2009 to 2016 the DOL collected more than $2 Billion in back wages). The secretary can direct the agency to expand or curtail these protections. For example, the Obama Administration took action to raise the wages of low-wage workers by changing overtime rules to raise the salary threshold for workers receiving overtime from $23,660 to $47,476, affecting an estimated 4.2 million additional workers.* Even if it is not Sanders, a Biden administration likely would also come with an aggressive appointment to this key post; if that happens, employers should embrace for An aggressive regulatory enforcement and policy initiative regime.

Of course, if the Senate majority remains Republican, a Biden administration may forego the quixotic adventure of a Sanders DOL nomination. The Democrats may very well need his vote in the Senate. 

*In 2017, a federal judge in Texas struck down the administration rule, agreeing with 21 states and a coalition of business groups, including the U.S. Chamber of Commerce, that the rule was unlawful and granted their motion for a nationwide injunction. Instead of appealing the ruling, the Department of Labor under the Trump Administration released a final rule lifting the salary limit from $23,000 to about $35,000 and scrapping the cost-of-living increases.

Memorandum Of Understanding (MOU) seeks to pull three giant bureaucracies under one tent. Recently, the EEOC, the DOL, and the Department of Justice agreed to sign an MOU  intended to add the DOJ as a signatory so that all three agencies responsible for enforcing the protections of Title VII are aligned. The EEOC has had some form of agreement with the DOL for years, but adding the DOJ is new, and reveals increased focus on getting all of the agencies under one tent, especially on certain key issues. During the discussion of the MOU, the two Democratic commissioners in the EEOC expressed concerns that the MOU undermines the EEOC’s autonomy in its enforcement of Title VII. The schism between the Republican and Democratic Commissioners highlights the unrest at the EEOC’s highest levels. That discord could be one of the reasons for the glacial pace of the agency action. Should Joe Biden unseat the President, employers should expect this MOU to go the way of the Dodo. Also, the MOU would refocus the OFCCP to become a complaint processing agency and stop its focus on systemic or class cases, requiring it to refer those cases to the EEOC.


Given that the balance of power in Congress will almost assuredly not align with the next President politically, the ability to move policy through executive action will be of utmost importance the next four years.  Since Democrats won control of the House during the “blue wave” of 2018, Trump has been largely unable to legislate the majority of his policy agenda through Capitol Hill. As such, he has moved many of his policy preferences through executive order, which we covered here, here, here, here and here, as just a few examples. President Trump’s unilateral policy making has been particularly notable in the immigration space. For example, President Trump’s executive orders have severely curtailed the all-important H-1B visa program, which provides businesses flexibility to temporarily employ foreign workers in specialty occupations. The recent EOs barring diversity training and restructuring the Civil Service rules could also be expected to be rescinded. A Biden administration would almost assuredly strike out all of these Executive Orders, probably between the swearing in and lunch on January 20. In addition, the Biden Administration will probably move to reverse the Independent Contractor regulations currently being considered by the Department of Labor. 

The United States electorate became well aware that immigration policy would be at the forefront of a Trump Administration the moment he descended that now-infamous escalator, announcing a candidacy that would put immigration squarely in the federal government’s cross-hairs. An Administration’s policy on immigration has an outsized influence on the smooth operation of business in the United States. Indeed, we have written extensively on the current Administration’s immigration policies. The President’s administration kicked off his first term with an executive order banning travel from certain countries; a move that inspired a profound response from the populace. After some heavy constitutional editing, the Supreme Court eventually upheld the ban, explaining that the President has “ample power” to unilaterally restrict entry into the Country through our immigration systems. Four more years of an administration under Donald Trump would likely be marked by executive action similar to the DOL’s recent interim final rule, making it more difficult and costly for both businesses and foreign workers in the H-1B program by raising prevailing wage levels for such workers; the DHS’ interim final rule, shortening validity periods and increasing documentation requirements for workers placed a third-party worksites; or the president’s proclamation in June, seeking to temporarily suspended the entry of certain employment-based, family-based and other immigrants. Simply put, a Trump Administration will almost assuredly see immigration numbers, both legal and illegal, continue to drop precipitously. 

On a legislative level, we can expect a Trump White House to continue to seek a legislative path to a “merit-based” immigration scheme, which would award green cards on the basis of a scoring system that would prioritize immigrants with greater education, income, and English proficiency.  Given the likely composition of a post-election Congress, this probably remains as distant goal.

While the current President maintains the need to reduce immigration — even where unsavory means are necessary — the Biden campaign alleges “Trump has waged an unrelenting assault on our values and our history as a nation of immigrants.” Biden, in contrast with the current Oval Office Occupant, is running on an agenda of increasing legal immigration. He supports expanding guest-worker programs, maintaining family preferences, giving a green card to everyone who earns a doctorate from an American university, increasing refugee admissions, and expanding employment-based visas. Some of these agenda items would necessitate a blue Congress to pass legislation, but many of these priorities can also be implemented via executive action. Plan number one under a Biden Administration would be to undo some of what the current Administration has done, most immediately the suppression of the Deferred Action for Childhood Arrivals (“DACA”) policy and the curtailment of Temporary Protected Status grants.  Between them, these two programs account for nearly 1 million work eligible individuals.  

Many of a Biden administration’s most immediate priorities will lie outside of the employment-based immigration space, such as the Administration’s policies that: separate parents from their children at our border, make the asylum process exceedingly more difficult, prolong detention in contravention of the Flores agreement, deny visas to immigrants who must use government services, among others. Apart from all the undoing, Biden has also pledged to protect dreamers who were brought to the U.S. as children, to impose a 100-day moratorium (from his inauguration) on removals, and then will only deport aliens convicted of undefined "felonies" thereafter (not to include drunk drivers). Biden has pledged to “commit significant political capital to finally deliver legislative immigration reform to ensure that the U.S. remains open.” 

Health Care

Regardless of who wins this election, the victor will have to confront an economy ravaged by the Coronavirus. Donald Trump’s first — and one of his most consequential — accomplishments was the Tax Cuts and Jobs Act, which lowered the corporate tax rate from 35% to 21% and changed the income level of individual tax brackets (the highest tax bracket saw their rate fall from 39.6% to 37%). Should Trump see re-election, he has promised to continue to slash taxes, including a reduction in capital gains tax from 23.8% to 15%, as well as a new tax slashing package promising a 10 percent cut for middle-income taxpayers. The details of said plan were slated to be released in September, but the public has yet to see the details. As we noted here and here, through executive action, the President recently deferred collection of payroll taxes and plans to make the cut permanent, even though such a result would require Congressional approval on a highly controversial topic, an unlikely process since the House will remain blue. 

This year’s election has seen the upheaval of many of the traditional differences between the GOP candidate for President and the Democratic one. One traditional policy disagreement, however, remains: while the incumbent GOP President has vowed to continue to reduce taxes across the board, regardless of income, the Democratic candidate, conversely, has pledged to raise taxes, but only for those making $400,000 or more. Biden has also pledged to increase the corporate tax rate from 21 percent to 28 percent, restore the top tax rate for individuals from 37% to 39.6%, cap the tax benefits of itemized deductions to 28% of value (meaning those with tax rates higher than 28% would see a 28-cent tax reduction for every dollar spent on charitable giving), increase the long-term capital gains tax rate (which is placed on profits from asset sales) from 23.8% to  39.6% for people with incomes over $1 million. An analysis of Biden’s tax plan from the nonpartisan Penn Wharton School for Business found that between 2021–2030, Biden’s plan would raise $3.375 trillion in additional tax revenue, increase spending by $5.37 trillion, and decrease the federal debt by 6.1%.

While the personalities of the two candidates could not contrast more, from a purely policy perspective, the daylight between the two glares the brightest when it comes to so-called Obamacare. From the outset of his presidency, and even in advance of his presidency, 45 has railed against — and done everything in his power to undermine — not only the efficacy, but also the legality of Obamacare, culminating in his recent request the Supreme Court strike it down in its entirety.  While President Trump has promised a more robust federal health program should Obamacare fail, the Administration has not released concrete plans for promised health care legislation. He recently stated, however, that he will sign a series of executive orders that would protect people with preexisting conditions, which is one of the more popular aspects of the Obama-era healthcare law. Joe Biden, conversely, has pledged to protect and strengthen the ACA, by including a public, government-run health insurance option similar to Medicare, but does not go as far as a Medicare for all option touted by some of his Democratic rivals. 

At the top of the agenda for both candidates will be the mitigation and ultimate resolution of the COVID-19 pandemic, and following in lock-step, the recalibration of the economy, with the sputtering engine of Main Street small businesses in dire need of cash infusions… and many would argue liability protections are similarly necessary. Should President Trump prevail, the handling of the response to the pandemic would likely remain mostly in the hands of the several states. State governments would remain responsible for COVID-19 testing protocols, social distancing requirements, and the distribution of personal protective equipment (PPE) and ventilators. But Trump would not take an entirely hands-off approach — the President has reiterated numerous times that he expects a vaccine to be ready imminently, and would see to its dissemination to the public by means of Operation Warp Speed. In terms of small business assistance, President Trump supported passage of the FFCRA, the CARES Act, and the PPP, but continued safety-net funding has stalled, as we noted here, here, here, here, here, and here. In terms of a liability shield, should the Senate remain in Republican control, Bill No. 4317 — which would introduce a federal COVID-19 liability shield similar to those that have popped up at the state level — would have a much greater chance of being appended to any additional COVID-19 relief. Seyfarth has been following the evolution of liability shields for some time, and we encourage you to read our most recent Legal Update, COVID-19 Liability Shields: Today’s Legislative Trend, Tomorrow’s Legal Defense.

In a Biden presidency, should the vaccine tarry in its development, his plan would essentially scrap the efforts of the Trump Administration and start from the top of the key, with the institution of a concerted federal response to the pandemic, regardless of the price tag. In addition, Biden’s platform lists a 35+ bullet plan of action and support, including stricter oversight of existing small business relief efforts, like the PPP, and charging OSHA “with setting and enforcing a rigorous emergency temporary standard so employers follow a clear set of rules to keep workers safe from COVID-19,” as was included in the House-passed HEROES Act, which we wrote about here. Biden’s plan also calls for financial relief efforts for small businesses, including financial support for retaining and rehiring workers as well as supporting a temporary small business loan program. Should Congress shade blue, however, the prospects of Congress legislating a COVID-19 liability shield into federal law plummet considerably — but that won’t stop states. Indeed, the Seyfarth Team, led by Honore Hishamunda, put together a compendium of states that have already passed some kind of liability shield.

Given the recent uptick in COVID-19 numbers — including more than 100,000 cases reported just yesterday — it has become increasingly clear that we are not “rounding the corner” on containing the virus. Indeed, White House Chief of Staff Mark Meadows recently conceded that we are not going to be able to contain the virus here in the United States. As such, we are at PMN foresee some kind of stimulus legislation regardless of the ultimate victor. But foretelling what will be in such a package remains beyond the prescience of mere mortal ken. Of course, the contents of a stimulus package will depend not only on who ultimately wins the presidential election, but also on the political makeup of Congress. On a high level, a Biden administration is likely to press a package similar to the HEROES Act, which the Democratic-led house passed in May. A Trump administration will likely press legislation similar to the HEALS Act, recently passed by the Republican-led Senate, which we discussed here. Apart from the baseline cost of the package, the main sticking points have been: (1) monetary aid to states, (2) hazard pay for essential front-line workers, (3) an emergency  temporary workplace safety standard, (4) a powerful liability shield to protect businesses from liability for COVID-19-related claims, and (5) jobless aid. A Biden administration is more likely to shepherd a package focused on aid to states and jobless aid; a package endorsed by a Trump Administration is more likely to focus on increasing funding for PPP loans and crafting a liability shield for COVID-19-related claims. Early this week, however, Speaker Pelosi began discussing her 2021 legislative priorities, including pandemic relief, causing the tea-leaf readers at the PMN to doubt that any kind of relief package will be on the table before the new year. 

Big Tech

The tech titans of Silicon Valley will face an uphill battle in the antitrust arena no matter which candidate is the ultimate victor, but a steeper slope likely looms in a Trump second term. The Trump Administration’s DOJ — under Attorney General William Barr — has made investigating tech companies for anticompetitive behavior a top priority. For example, it has spent the past 16 months delving into one tech giant’s control over search, mobile, and the technology underlying much of the advertising that funds the open web. On October 20, the DOJ filed an antitrust lawsuit against a tech giant in the U.S. District Court for District of Columbia, Case No. 1:20-cv-03010. Taken altogether, the Complaint avers that the Company’s “anticompetitive and exclusionary practices violate Section 2 of the Sherman Act, 15 U.S.C. § 2.” (Complaint at 56). If re-elected, Trump’s DOJ will likely continue its pursuit of breaking up large tech companies as well as its fight in the courts for bans on Chinese-owned apps such as TikTok and WeChat, while the FTC will also be involved in the preparation of lawsuits against tech companies and investigating anti-competitive behavior.  

Biden has not made antitrust law overhaul a central theme of his campaign, even while it remains a high priority among House Democrats. While a Biden DOJ would in all likelihood continue the Trump Administration’s fight against Big Tech — and may even seek to amend the Complaint or expand the case to add additional parties — Biden (and Harris) more likely will act as a mediator between Congress (whether blue or red) and the tech community, tempering the bipartisan avalanche of criticism of the companies. On October 6, the House Subcommittee on Antitrust — chaired by Democrat David Cicilline — published a 450 page report titled Competition in the Digital Marketplace: Majority Staff Report and Recommendations, proposing an overhaul of antitrust laws that would make it easier to break up tech conglomerates. The Chairs’ Foreword to the Report notes: “To put it simply, companies that once were scrappy, underdog startups that challenged the status quo have become the kinds of monopolies we last saw in the era of oil barons and railroad tycoons.” Any explicit Biden Administration policy with regard to antitrust, however, remains to be seen.

How the federal government will handle the misclassification of independent contractors is on the ballot. If Democrats take control of the Senate, which at this point seems unlikely, a Biden Administration would likely usher in a new era of employee-friendly laws and regulations in the area of employee classification. When President Obama began the process of rooting out improper employee classification — including the 2010 launch of the “Misclassification Initiative,” part of Vice President Biden’s Middle Class Task Force — the meteoric rise of the “gig-economy” during the past decade was unpredictable. 

Similarly unpredictable was employers' expansive rate of classifying workers as “independent contractors” — as opposed to employees — which exacerbated the issue to the point that it now inhabits a place at the forefront of the Biden platform. Biden promises to “put a stop to employers intentionally misclassifying their employees as independent contractors.” While the platform doesn’t provide much detail on how exactly he will make good on his promise, a Biden Administration would most likely start by appointing new leadership at the DOL, NLRB, and FTC to reinterpret existing mandates.

The Biden campaign has expressly endorsed California’s controversial ABC test — which Seyfarth’s California-centric publication his written on the extensively, and even has its own tag dedicated to the issue — and called for implementation of a similar test on a national level. In terms of enforcement, Biden promises to push for “an aggressive, all-hands-on-deck enforcement effort that will dramatically reduce worker misclassification.” 

A snag in the plan may be finalization of the current DOL’s  Proposed Rule, which Seyfarth summarized here. The DOL’s proposal would institute a factor test for determining the classification of a worker, with the most salient factors being: (1) the nature and degree of an individual’s control over the work and (2) the individual’s opportunity for profit or loss. The test is a substantial departure from the multi-factor, “totality of the circumstances” tests employed by courts in varying jurisdictions. We here PMN discussed the proposed rule here. The Chamber of Commerce commented on the proposal — with a helpful assist from Seyfarth — encouraging the DOL to adopt the rule to provide a definitive standard for employers wrestling with this tricky area.  The DOL has signaled that it would like to finalize the Rule by year’s end, barring any litigation that may delay finalization. Should litigation indeed hold up the Rule past a hypothetical Biden Inauguration Day, the DOL under a President Biden could rescind the rule, eventually. If the Rule becomes final, however, a Biden Administration would still have options to moot the rule, but those options diminish with a Republican majority in the Senate. Should Trump hold onto the battleground states, however, the Proposed Rule sees a clearer path to finalization. But even so, the Rule will not impact state laws that apply more stringent independent contractor classification standards, such as California’s AB 5 and AB 2257

Legislative Agenda

In addition to a more left-leaning membership of the NLRB, DOL and EEOC, Joe Biden has pledged to expand worker protections by strengthening public and private sector unions and making the collective bargaining process simpler for workers. 

  • A Biden Administration Would Strengthen The PRO Act. Biden has promised to expand the PRO Act by pressing “legislation to impose even stiffer penalties on corporations and to hold company executives personally liable when they interfere with organizing efforts, including criminal liability when their interference is intentional. The current iteration of the PRO Act provides for financial penalties on companies that interfere with workers’ organizing efforts, including firing or otherwise retaliating against worker. Biden proposes to stiffen monetary penalties on corporations, including potential criminal liability. Biden proposes to add the following provisions to the PRO Act: (1) ban employers’ mandatory meetings with their employees; (2) reinstate and codify into law the Obama-Biden Administration’s “persuader rule” requiring employers to report not only information communicated to employees, but also the activities of third-party consultants who work behind the scenes to manage employers’ anti-union campaigns; (3) codify into law the Obama-Biden era’s NLRB rules allowing for shortened timelines of union election campaigns; and (4) stop employers from stalling initial negotiations with newly formed unions. Trump has vowed to veto any such legislation should it reach his desk, claiming that it would harm jobs, violate privacy, restrict worker freedoms, and roll back his ambitious deregulatory agenda. Given the likely makeup of Congress, however, expect a severely watered down version of the Act.
  • Fair Pay and Safe Workplaces. During the previous administration, President Obama issued an executive order requiring employers’ compliance with labor and employment laws be taken into account in determining whether they are sufficiently responsible to be entrusted with federal contracts. President Trump rescinded the order. Biden has pledged to reinstitute the order, only awarding contracts to employers who support their workers and are in full compliance with federal labor laws and regulation. 
  • Wage and Hour. As a candidate, Joe Biden has promised to increase the federal minimum wage from $7.25 an hour to $15 an hour over time. A new overtime regulation is likely to be a central component of a Biden administration’s labor policy agenda. Any overtime regulation will likely be very similar to the Obama administration’s final rule: it will have a higher salary threshold, exempting fewer employees, and be indexed to some measure, so that it is not eroded by inflation. Regardless of the content of the final rule, it will still be challenged in the courts, where survival is far from certain. Given that the Republican Party did not release a platform for the 2020 election, and Trump’s website does not include specific plans for a second term, we are forced to read the tea leaves of Trump tweets and statements to discern any kind of policy position as it relates to wage and hour issues. Last year, he said he was “looking into” supporting a plan to raise the rate to $15 per hour, but later opposed legislation designed to do just that. 
  • Paid Leave. When COVID-19 reached our shores and forced Congress to pass the FFCRA — which we wrote about here and here — the nation saw its first ever federal paid leave program. The leave provisions of the FFCRA are set to expire on December 31, but once the policy bottle has been opened, it is difficult to put the contents back in, see e.g., the Affordable Care Act. Now that the nation has had a taste of legislated paid leave, will we as a nation be able to go back? 

The President recently took a step in the paid leave direction by approving a law permitting federal employees to take paid parental leave. He also telegraphed during the State of the Union address that he hoped this would serve as a “model for the rest of the country,” while indicating support for a proposed bill that would let parents borrow money against future earnings to fund a paid leave program. Across the aisle, Joe Biden’s paid leave program calls for 12 weeks of paid leave for all workers for their own or a family member’s serious health condition. Candidate Biden has not, however, endorsed, the FAMILY Act, that would require paid leave for a broader list of situations.

  • Arbitration Clauses. Joe Biden has vowed to “enact legislation to ban employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their right to class action lawsuits or collective litigation.” The President has not indicated that the arbitration process would change in any significant way under a second Trump-led Administration — expect the status quo to prevail in this scenario. 
  • Joint Employment. The DOL, under the current administration, has implemented regulations -- which Seyfarth discussed here -- making it more difficult for workers to claim they are joint employees of multiple organization. Notably, however, in September, a federal court invalidated a key portion of the rule pursuant to the Administrative Procedure Act. Expect the DOL under a Trump administration to continue to make it more difficult for employees to claim joint employment. Joe Biden’s campaign conversely, has pledged to codify the Browning-Ferris Industries joint employer definition, and restore the broad definition of joint employment, as the House of Representatives envisions

That the Lilly Ledbetter Fair Pay Act of 2009 was one of the first legislative products of the Obama-Biden Administration is demonstrative of the importance a Biden Administration would likely place on ensuring equal pay. The Biden campaign has pledged to continue to build on that piece of legislation, and outwardly supports Senator Patty Murray and Congresswoman DeLauro’s Paycheck Fairness Act, which requires employers to demonstrate that pay disparities are based on legitimate, work-related factors, and prohibits retaliation against employees who discuss or compare their wages. As noted, however, a Congress aligned with the President is highly unlikely, rendering passage of the Paycheck Fairness Act somewhat of a pipe dream.

Meet The Team

This report is brought to you by Seyfarth's Government Relations and Policy group, with special thanks to Larry Lorber, Leon Rodriguez, Sam Sroka, and Scott Mallery.