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El Paso, TX 79901
Phone: 915.533.4424
Fax: 915.546.5360

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Austin, TX 78705
Phone: 512.320.5466
Fax: 512.320.5431

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Las Cruces, NM 88011
Phone: 575.527.0023
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What Can Employers Expect from a Biden Administration

Employers should begin preparing for changes to come from the Department of Labor (“DOL”) and other federal agencies under President-elect Joe Biden’s administration. While President-elect Biden has not named a nominee for Labor Secretary, the DOL is likely to shift directions on issues ranging from COVID-19 OSHA standards to arbitration limits in employment.

The Biden administration will continue to face issues surrounding COVID-19 and the workplace. EEOC commissioner, Victoria Lipnic, foresees that the EEOC will issue guidance on vaccine mandates before the January 20, 2021 inauguration. It is also expected that a specific OSHA standard addressing COVID-19 will be released during the Biden administration. Currently, only the general duty standard applies which requires that employers provide a work environment “free from recognized hazards that are causing or likely to cause death or serious physical harm.” The expectation is that a new specific standard may be issued on an emergency basis, so that it is not subject to notice and comment requirements, or that it may also be released through an executive order. Regardless of how the new standard is released, it is expected to be released immediately after Biden takes office.

Another issue to be pushed by the Biden administration is legislation seeking to severely limit, or abolish, arbitration in employment. Significant traction in support of this plausible legislation is expected given that arbitration in the employment setting has gained popularity among employers but has been met with hostility from employees. Although it is unclear whether Republicans will retain control of the Senate at this time, if Democrats are able to gain the two seats in the Georgia run-off it will be almost certain that legislation limiting arbitration will be enacted during a Biden administration.

Significant efforts by the Biden administration to raise the federal minimum wage and provide federal paid leave are also expected. Biden advocated for a $15 federal minimum wage for all workers during his campaign. This is a significant increase from the current federal minimum wage of $7.25.

Further, given the federal paid leave which is available until December 31, 2020, under the Families First Coronavirus Response Act, it is also expected that a federal paid sick leave statute will gain traction. Finally, it is also expected that there will be significant efforts to reign in the use of independent contractors once Biden takes office.

There is no doubt that the Biden administration will reverse many Trump-era rules. Employers should begin identifying which reversals will affect them, as well as begin strategizing on effective ways to mitigate the plausible damage caused by such reversals. Kemp Smith’s Labor and Employment Department is here to guide employers and assist in this strategic planning given the urgency with which the Biden administration will implement new rules and standards. If you need guidance and assistance on preparing for the new administration’s labor agenda, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.