With the Biden administration having now completed its first 100 days, we can begin to see a shift in the direction for labor and employment law, and we should be prepared. While COVID-19 has continued to dominate the legislative agendas, there has been noteworthy attention to many labor and employment matters. Below are some of the laws and initiatives that have been made a priority.
The Equality Act.
H.R. 5, which has already passed the House of Representatives previously and passed again on February 25, 2021, is consistent with the June 2020 Supreme Court decision confirming that protections under Title VII of the Civil Rights Act of 1964 extend to individuals on the basis of sexual orientation and gender identity. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation. The bill expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services. Finally, the bill prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.
Strengthening Union and Labor Laws.
President Biden made clear in his campaign that he planned to strengthen unions and encourage unionizations. Part of that effort involved the appointment of former Boston Mayor Marty Walsh to serve as the Secretary of Labor. Secretary Walsh is the first union member to fill the role in nearly a half a century. Another part of that effort was the House of Representatives passing the Protecting the Right to Organize Act of 2021, commonly referred to as the PRO Act, on March 9, 2021. This bill expands various labor protections related to employees’ rights to organize and collectively bargain in the workplace. Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); (3) prohibits employers from bringing claims against unions that conduct such secondary strikes; and (4) imposes penalties on companies that interfere with workers’ organization efforts.
Repealing Prior Executive Orders.
Presidential executive orders have become a preferred means of making policies when initiatives do not move in Congress. President Biden has already used executive orders to revisit and/or repeal the prior administration’s orders and issue new ones. One of the first executive orders repealed was Executive Order 13950 “Combatting Race and Sex Stereotyping,” which sought to regulate the contents of diversity and inclusion training. Other executive orders that President Biden has already or may revisit concern immigration, including a proposed rule to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy.
Revisiting some Federal Wage and Hour Laws.
The Department of Labor has moved quickly to rescind its regulation interpreting the joint employer status under the Fair Labor Standards Act, and remove the regulation at 29 CFR Part 791 established by the Rule. Additionally, consistent with the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, titled “Regulatory Freeze Pending Review,” the Department subsequently issued a notice on March 4, 2021 delaying the DOL’s Independent Contractor Status Under the Fair Labor Standards Act Rule’s effective date until May 7, 2021. On March 11, 2021, the Department announced a notice of proposed rulemaking proposing to rescind the Independent Contractor Rule.
Paycheck Fairness Act.
President Biden was a former co-sponsor of this act as a Senator. The bill addresses wage discrimination on the basis of sex, which is defined to include sex stereotypes, pregnancy, sexual orientation, gender identity, and sex characteristics. Some of the highlights of the bill include: (1) banning salary history questions during interviews; (2) limiting an employer’s defense that a pay differential is based on a factor other than sex to only bona fide job-related factors in wage discrimination claims; (3) making it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages; and (4) increasing civil penalties for violations of equal pay provisions.
Minimum Wage Increases.
Many expect the Biden Administration to push for raising the federal minimum wage, following states and local governments nationwide, who have passed laws steadily increasing their minimum wage rates. The last time the federal minimum wage was raised was over ten years ago, and currently remains at $7.25 per hour.
Many of the new labor and employment laws and initiatives include a continuation of policies from the last year. The above does not fully incorporate all of the legal changes expected in the weeks and months to come. •
Demetrius Pyburn is an associate with Haynsworth Sinkler Boyd, P.A in Greenville, South Carolina. He offers advice and counsel to clients on aviation and drone law, in addition to employment law issues involving the ADA, FMLA, Title VII and other employment-related regulations.