Burr & Forman

02.11.2021   |   Articles / Publications, COVID-19

Ron Flowers Details 10 Labor & Employment Changes to Expect for Corporate Counsel

Following the inauguration of a new administration and the political shift to the Democratic majority in Congress, Ron Flowers authored the February 4, 2021 article for Corporate Counsel listing the top 10 labor and employment changes to expect over the next two years.

While the White House and Senate majority have shifted political affiliations, factors like the filibuster will limit the ability of the Biden administration and Congress to pass many of the progressive and employee-friendly policies on their agenda. With that in mind, Flowers listed the top 10 changes to anticipate from the least likely to the most likely:

10 – Paid Sick Leave. While Biden’s agenda calls for 12 weeks of yearly paid family and medical leave, it is not likely to pass a divided Congress beyond the recently approved two weeks of paid Emergency FMLA leave.

9 – Removal of Trump Guidance and Regulations. The new administration has already begun the process of rolling back Trump guidance and regulations affecting a number of employment issues, including tip pooling, employee classification the independent contractor rule and more.

8 – Return to the Obama FLSA White-Collar Exemption Threshold. After the Trump administration issued Fair Labor Standards Act (“FLSA”) regulations setting the salary threshold for white-collar overtime exemptions at $35,308, the Biden DOL is likely to unveil regulations setting the threshold at President Obama’s proposed $47,476 or higher.

7 – Increased OSHA Enforcement. The number of OSHA enforcement personnel, inspections and the amount of penalties declined during the Trump administration, but expect Biden’s OSHA to significantly increase these numbers.

6 – Incremental Federal Minimum Wage Increases. While a $15 minimum wage is unlikely to obtain majority support in the Senate, much less the necessary support to overcome a filibuster, incremental increases to the current $7.25 federal minimum wage may attract even some Republican support if the parties are willing to compromise.

5 – EEOC Reporting. The Biden EEOC is likely to implement new reporting requirements for employers to track wage and salary data by position based on race and gender to attempt to foster increased pay equality.

4 – Ambush Election Rules 2.0. After a Democratic Board majority is established this Fall In December 2019, The Biden NLRB is likely to adopt rules similar to the “ambush” rules issued under President Obama to shorten the time before a certification election is held after a representation petition is filed.

3 – Return of the Revised LMRDA Persuader Rules. To fulfill its strongly pro-labor agenda, the Biden DOL is likely to attempt to reinstate the revised Labor Management Reporting Disclosure Act (LMRDA) “persuader” rules originally put forth by the Obama administration, which would broaden the number of companies and individuals required to file LMRDA disclosure paper work and make organizing campaigns more difficult for employers.

2 – $15 Minimum Wage for Federal Contractors. Biden has already issued an executive order directing his administration to start work on an executive order to require a $15 minimum wage for all employees of federal contractors within the administration’s first 100 days.

1 – Temporary OSHA COVID Rule. On January 29, 2021, OSHA issued new guidance on protecting employees from COVID-19. Thus, the first significant changes employers are likely to see from the Biden administration are new COVID-19 OSHA guidance and rules and increased enforcement.

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