Biden Administration Employment Law Issues to Watch For

As the Biden administration begins to take shape, below are some employment issues that we will be monitoring. We will make sure to update this blog if and when changes begin to occur.

• COVID-19 Relief

• • Extension and reinstatement of FFCRA emergency paid sick leave and emergency FMLA leave benefits through to 9/30/2021.
  • Extension of tax credits to employers for providing such benefits.

• Wage and Hour

  • Increase to the federal minimum wage to $15 per hour. The extension could be proposed to occur all at once or in incremental phases.
  • Withdraw of support for the joint employer rule that is currently in litigation.
  • Elimination of the tip credit, which currently allows employers to include tips as part of the minimum wage.
  • Elimination of the sub-minimum wage for individuals with disabilities.
  • Increase to the minimum salary needed for employees to qualify for exempt status under the FLSA.
  • Changes to regulations dealing with compensation for off-the-clock work (and specifically the de minimum exception). This would expand the circumstances in which employers must compensate non-exempt employees for checking email from home.
  • Support for measures that would add “wage theft” provisions to the FLSA, such as amendments to enhance pay transparency and require employers to provide detailed pay statements, while expending the penalties for willful instances of wage theft, record falsification, and retaliation.
  • Aggressive enforcement of wage and hour standards against certain targeted industries such as fast food, janitorial services, and construction.
  • Stronger coordination with state DOLs in investigating complaints.
  • End to the practice of the Wage & Hour Division issuing opinion letters.

• Paycheck Fairness Act

  • Support for the Paycheck Fairness Act, which would prohibit employers from paying employees of one gender more than employees of the other gender, unless the employer can show certain “bona fide factors” like differences in education, training, or experience.
  • The Paycheck Fairness Act would also require employers to report compensation data to the EEOC regarding their employees’ races, sexes, and national origins.

• Family Leave

  • Support for legislation (such as the Family and Medical Insurance Leave Act or FAMILY Act) that would provide employees with up to 12 weeks of paid family and medical leave on an annual basis.
  • Support for expansion of protections for pregnant, senior, and disabled employees. This includes support for legislation that would abrogate Gross v. FBL Financial Services, Inc., thus eliminating the requirement of plaintiffs to prove ADEA discrimination cases with evidence of “but-for” causation. It also would allow plaintiffs in ADEA cases to proceed under a “mixed motive” theory.

• Equality Act

  • Support for passage of the Equality Act, which would formally prohibit discrimination with respect to employment, housing, education, and public accommodations on the basis of sexual orientation and gender identity.

• Employment Arbitration

  • Support for legislation (such as the Forced Arbitration Injustice Repeal Act) that would invalidate pre-dispute arbitration agreements in employment, civil rights, consumer, and antitrust contexts, and would require employers to litigate certain workplace disputes in courts.
  • Support for legislation that would invalidate class and collective action waivers in the context of employment.

• Restrictive Covenants

  • Support for legislation that would place limits on the enforceability of non-compete and coworker non-solicitation covenants.