Members of Venable’s Labor and Employment, and Legislative Groups discussed what the first 100 days of the Biden administration might look like for labor and employment (L&E) issues. They acknowledged that President-elect Biden is expected to set a bipartisan tone within his administration and focus on key labor and union matters.

President-elect Biden’s selection for secretary of labor may have a major impact on L&E laws in the U.S. in the years to come. In addition to filling this role, L&E topics likely to be addressed by the Biden administration in mid-January include personal protective equipment (PPE) availability initiatives, a nationwide mask mandate, Occupational Safety and Health Administration (OSHA) and Centers for Disease Control (CDC) recommendation enforcement, and perhaps national shutdown orders.

President-elect Biden has a record of being pro-union and supportive of union organizing and collective bargaining; he supports the Protecting the Right to Organize (PRO) Act and has said he will sign into law the Employee Free Choice Act. Under the Biden administration, expect to see employee laws related to restrictive covenant agreements/non-competition agreements pushed for elimination; President-elect Biden is an advocate for freedom of movement within workplaces. Additionally, the president-elect is expected to address issues related to gig economy workers and independent contractor and employee classifications. Finally, livable wage discussions will continue, centered around how to fund wage increases and who qualifies for livable wages. There could be increased pressure from the Biden administration and the secretary of labor for increased wage action and discussion around tipped employees.

Related to the National Labor Relations Board (NLRB), the Trump administration labor board was fairly active, and President-elect Biden will be able to appoint several members to influence the direction of that board moving forward. The NLRB will be looking at microunit organizing, employee rights related to social media, and the topic of joint employers, among others. Related to the COVID-19 pandemic and its impact, a pressing issue is unionized workforces where members are not working. An effect of this is financial stress for large union pension funds. The Biden administration may be lobbied to help large union funds facing financial struggles.

In other labor-related matters, President-elect Biden is expected to support the Forced Arbitration Injustice Repeal (FAIR) Act and will likely revoke the recent executive order combating race and sex stereotyping. As Congress considers the next COVID-19 relief bill, there will likely be a component addressing employer and retail owner shields related to the pandemic. On the judicial front, the Supreme Court decision related to the Affordable Care Act is expected soon; the Act is unlikely to be struck down by the Court.

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