From pay equity to an increased minimum wage, pro-worker and pro-union labor policies, and additional anti-discrimination protections, President-elect Biden has touted support for numerous legislative and regulatory proposals that would significantly change the employment and labor law landscape.  Bolstered by Democrat victories in the Georgia Senate runoff elections (and the resulting unified Congress, the first in nine years), employers can expect new and amended workplace laws and rules in 2021.  We highlight below several of the initiatives the Biden administration is likely to prioritize.

Equal Employment and Paid Leave

More stringent federal equal pay laws.  President-elect Biden has publicly committed to supporting measures aimed at further tackling pay disparity.  Indeed, Biden has pledged to sign the Paycheck Fairness Act during his term.  Under current law, an employer may, for example, pay a male employee more than a female employee where the reason for the disparity is based on a “factor other than sex.”  The Paycheck Fairness Act would eliminate this flexibility, limiting such disparities to bona fide factors objective such as education, training, or experience.  The act would also prohibit employers from restricting employees from discussing wage information and require companies to report to the EEOC compensation data correlated to employees’ race, sex, and national origin.  If signed, the bill would make it easier for employees to pursue individual and collective/class actions against their employers, alleging wage discrimination on the basis of race, sex and national origin.

Broader anti-discrimination laws.  In its June 2020 decision in Bostock v. Clayton County, Georgia, the Supreme Court held that Title VII’s prohibition against sex discrimination encompasses and thereby outlaws discrimination on the basis of sexual orientation and gender identity.  Notwithstanding that precedent, President-elect Biden has repeatedly stated that he hopes to sign the Equality Act within his first 100 days in office.  The Equality Act, which previously passed the House of Representatives, would prohibit discrimination with respect to employment, housing, education, and public accommodation on the basis of sexual orientation and gender identity.  Additionally, Biden has expressed support for expanding protections for pregnant, senior, and disabled employees.

Federal paid family leave.  President-elect Biden has expressed support for providing employees up to 12 weeks of paid family and medical leave.  Biden’s camp has indicated that his proposal for paid leave would include provisions similar to those in the Family and Medical Insurance Leave Act (the FAMILY Act), which has previously been introduced in Congress.

Elimination of the “but-for” causation requirement under the ADEA.  President-elect Biden has indicated that he intends to protect older Americans against discrimination in the workplace by, among other things, making it easier for such workers to prove that they were victims of age discrimination.  Since the Supreme Court’s 2009 decision in Gross v. FML Fin. Servs., Inc., plaintiffs alleging discrimination under the federal Age Discrimination in Employment Act have been required to prove that age was the “but-for” cause of the harm they suffered, as opposed to merely a “motivating factor.”  By contrast, other anti-discrimination laws, such as Title VII, allow a “mixed motive” theory of liability, under which a plaintiff can prevail even if the characteristics protected by the statute are not the only reasons for the employer’s action.

Employment-Related Agreements

Elimination of mandatory pre-dispute arbitration.  Having regained control of the Senate, Congressional Democrats are expected to pass the Forced Arbitration Injustice Repeal Act, and Biden has indicated his support.  The act, which has already passed the House, would invalidate pre-dispute arbitration agreements in the employment, civil rights, consumer, and antitrust contexts, and would require employers to litigate workplace disputes in court.

Elimination of class-action waivers.  In its 2018 decision in Epic Systems v. Lewis, the Supreme Court expressly upheld class and collective action waivers in the employment context.  Employers utilizing such waivers can currently mandate the resolution of employment-related claims on an individual basis in an arbitration proceeding, thereby minimizing their exposure to potential class-wide liability.  Notwithstanding Epic Systems, President-elect Biden has stated that he would sign legislation prohibiting employers from seeking such waivers.

Increased restrictions on non-compete agreements.  President-elect Biden has proposed placing limits on non-compete and no-poaching agreements.  More specifically, Biden has stated that he will work with Congress to prohibit non-compete agreements with the exception of those “that are absolutely necessary to protect a narrowly defined category of trade secrets” and to eliminate no-poaching agreements altogether.

Wage and Hour

Minimum wage hikes.  The federal minimum wage is currently less than half the highest state minimum wage (for example, it’s $15 for large employers in New York City).  Over the last few years, state and local governments nationwide have passed laws steadily increasing their minimum wage rates.  President-elect Biden has followed their lead, repeatedly calling for raising the federal minimum wage to $15.  Biden also supports eliminating the inclusion of tips as part of the minimum wage as well as the subminimum wage for individuals with disabilities.  With the Senate now controlled by Democrats, the White House is likely to secure the Congressional support necessary to increase the minimum wage, likely on an incremental basis over the next several years.

Overtime rule changes.  We expect the Biden Administration to ask the Department of Labor to implement benchmark-related increases to the minimum salary for overtime exemption, similar to what President Obama’s DOL tried to implement in 2016 (those changes were declared invalid by a Texas federal district court prior to implementation); such a change would result in more “white collar” employees being eligible for overtime pay.  Under the 2016 rule, the minimum salary for such workers to be exempt from overtime would have doubled from $23,660 to $47,476 and would have further increased every three years.  With support from Congressional Democrats, it’s likely the White House will seek to implement similar changes to the overtime laws through a combination of legislative and agency rulemaking processes.

Addition of “wage theft” provisions to the FLSA.  President-elect Biden also is expected to push for measures that would add “wage theft” provisions to the Fair Labor Standards Act.  Following the lead of a number of states, such amendments would enhance pay transparency and would require employers to provide detailed pay statements while expanding the penalties for willful instances of wage theft, record falsification, or retaliation.

Labor/Management Relations

Pro-worker/union legislation. President-elect Biden has promised to sign the Protecting the Right to Organize (PRO) Act, which passed the House in February 2020 but stalled in the Senate. The pro-worker legislation would provide for sweeping changes to the National Labor Relations Act, with the goal of enhancing the ability of unions to organize workers.  Its key provisions are as follows:

  • imposing financial penalties against employers for interfering with workers’ organizing efforts;
  • compelling mediation in first contract negotiations where agreement is not reached within 90 days;
  • banning employers from holding mandatory meetings with their employees, including “captive audience” meetings;
  • reinstating the Obama administration’s controversial “persuader rule,” which required employers to report the activities of third-party consultants that work behind the scenes to manage employers’ campaigns in response to union organizing;
  • codifying into law the more expansive Browning-Ferris “joint employer” rule and the 2014 representation election rule with shorter union election timelines; and
  • permitting workers to engage in secondary boycotts and preventing employers from permanently replacing strikers.

Despite President-elect Biden’s support, it is unlikely the PRO Act will become law in its current form to the extent it is subject to a filibuster.

Unionization through card-check authorization.  Biden has been an avid proponent of card-check authorization—which would bypass the NLRB’s election process and allow unions the right to secure recognition by collecting authorization forms from employees stating that they wish to be represented by the union. The PRO Act also includes a provision that would require employers to recognize a union based on a card-check authorization, but only if the NLRB determines that the employer improperly interfered with the election.

Increased legal and financial security for unions. President-elect Biden has stated that he would ban state “right to work” laws and allow unions to collect dues from all workers who benefit from union representation, regardless of union membership. While the PRO Act would aim to supersede “right to work” laws by allowing employers and unions to bargain for contract provisions that require all workers to pay a “fair share” of the costs of union representation, Biden has said that he would go even further and repeal the provisions of the Taft Hartley Act that allow states to enact “right to work” laws. Additionally, a Democrat-majority NLRB could reverse recent precedent holding that employers are not obligated to adhere to dues-check-off provisions following the expiration of a collective bargaining agreement.

A pro-labor Board. The NLRB is comprised of five members, all of whom are appointed by the President for five-year terms, with the approval of the Senate.  With one seat currently vacant and another to be vacated by a Republican in August 2021, the White House will have the ability to secure a Democratic majority on the Board.  In addition, upon taking office, President-elect Biden could succumb to the many calls within the Democratic party to terminate NLRB General Counsel Peter Robb before the expiration of his term in November 2021.  No incoming president has ever terminated a General Counsel, however, and the legality of such an action is untested. The General Counsel exerts significant influence over the NLRB regions’ prosecutorial priorities and agenda.

Reversal of recent precedent-setting NLRB decisions.  Under President Trump, the NLRB issued a number of significant decisions aimed at relieving some of the administrative burdens placed on employers by decisions issued by the Obama Board, including with respect to employee access to employer IT systems for organizing activity, employer handbook rules and workplace policies, and unilateral actions by employers concerning mandatory subjects of bargaining.  As is the case whenever party affiliation in the White House changes, all of the labor policies implemented in the last four years are susceptible to change or reversal by a Democrat-majority NLRB.

Reversal of regulations enacted by the NLRB in the last few years. Under the Trump Administration, the NLRB adopted an ambitious rulemaking agenda—a departure from the Board’s historical practice of setting labor policy through the adjudication of actual cases.  Over the last several years, the Board has adopted a more stringent “joint employer” rule, revised its election rules to provide for a more efficient and reasonable pre-election process, and proposed a final rule rejecting the “employee” status of graduate student teachers and research assistants at colleges and universities, among others.  The forthcoming Democrat-majority Board could decide to revoke or reverse these rules through additional rulemaking.

Other Anticipated Actions

Freeze on midnight rules and regulations.  As President Trump did when he took office in January 2017, we expect Biden will issue a memorandum on Inauguration Day to the heads of all executive departments and agencies temporarily halting all non-emergency rulemaking activities.  Among other things, the memorandum is likely to direct the recipients to send no regulation to the Office of the Federal Register (OFR) for publication pending further review and approval; to withdraw all regulations sent to OFR but not yet published; and to postpone the effective date of any regulations already published but which have not yet taken effect.

*           *          *

Some of the new laws and rule changes expected from the Biden administration won’t require a change in practice or strategy for employers in states and cities with existing employment laws considerably broader than their federal counterparts.  But in many parts of the country, the landscape of workplace law may change dramatically over the next year.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Elizabeth Dailey Elizabeth Dailey

Elizabeth Ann Dailey is an associate in the Labor & Employment Law Department. Elizabeth assists clients in a variety of labor and employment matters, including motion practice, administrative proceedings, internal investigations, labor-management relations, and claims of employment discrimination. As part of her labor-management…

Elizabeth Ann Dailey is an associate in the Labor & Employment Law Department. Elizabeth assists clients in a variety of labor and employment matters, including motion practice, administrative proceedings, internal investigations, labor-management relations, and claims of employment discrimination. As part of her labor-management relations practice, Elizabeth has assisted in representation proceedings before the NLRB and has experience responding to unfair labor practice charges, conducting labor-related business risk assessments, and assisting with collective bargaining negotiations.

Elizabeth frequently represents clients across a variety of industries and sectors, including educational institutions, sports entities, news and media organizations, entertainment companies, healthcare institutions, and real estate companies.

Elizabeth earned her J.D. from the University of Pennsylvania Law School, where she completed a certificate program in business management from The Wharton School. While attending Penn Law, Elizabeth interned with the National Labor Relations Board Region 2 where she conducted investigations into unfair labor practices and recommended case dispositions to the Regional Director.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.