Election 2020: Implications for Employers
E-mployment Alert November 4, 2020
- The results of the 2020 election could potentially bring massive implications for Ohio employers in several critical areas.
- A Biden win could likely mean an increase in the federal minimum wage, increased DOL/FLSA enforcement, and expansion of the definition of “joint employers.”
- The election may also significantly affect the timing and key aspects of COVID-19 stimulus legislation, including extensions of the CARES Act and FFCRA.
Votes are still being counted and we may still be days away from an official announcement. But one thing we know for sure is that the results of the 2020 election may bring a number of changes to labor and employment law. Here are a few key topics for employers to watch, depending on the election’s final official results.
1. DOL + Wage and Hour
In the event of a Biden victory, expect increases in the federal minimum wage and salary rates. Dems have suggested support for a $15/hour minimum wage rate. If this rate is increased, then the salary threshold (currently $685/week) would also likely increase to retain a sufficient gap between exempt and non-exempt employees under the FLSA- a $15 wage rate would result in approximately $600/week for full-time employees.
Biden has also proposed increased penalties for worker misclassification, increased DOL/FLSA enforcement effort, increased staffing of federal agencies, and greater collaborative enforcement efforts between various agencies. The former vice president has also voiced support for legislation that would increase the standard to classify workers as independent contractors and expand the definition of “joint employers.”
2. Executive Orders
There’s been much debate surrounding President Trump’s recent Executive Order 13950, which prohibits federal contractors from including race or sex stereotyping or implicit biases in workplace diversity and inclusion training. This will likely be withdrawn in the event of a Biden victory.
Biden has already stated that he’s committed to reinstating OSHA regulations that were altered during Trump’s presidency. He also has promised to increase the number of OSHA investigators and increase the agency’s enforcement efforts, especially in light of COVID-19.
4. NLRB and Other Administrative Agencies
While Trump’s administration has largely favored employers, undoing many Obama-era pro-union rulings, this may be short lived. If Biden is elected, expect a shift back to where things were during President Obama’s term. This may include reversals of several decisions we discussed at our 2020 Managing Labor + Employee Relations Seminar (click to view), including the Apogee Retail (allowing confidentiality of workplace investigations) and Caesar’s Entertainment decisions (allowing employer limits on employee use of company email).
Biden has also indicated support for the Protecting the Right to Organize Act (PRO Act). This Act would increase penalties for companies found to have interfered with union organizing, including personal criminal liability. He has also suggested additional funding to increase the number of NLRB investigators and extending organizing and bargaining rights to independent contractors.
5. COVID-19 Response
Both sides have voiced support for another COVID- stimulus bill, but the timing of that legislation will likely depend on the presidential election. In the event of a change in office, there is a notorious lag in new legislation between election results and the swearing in of the 117 th Congress on January 3rd. This could mean additional wait time for new COVID-19 relief.
Other pandemic response measures that might hinge on election results include an extension of the FFCRA and CARES Act, OSHA crackdowns, and potential tax credits for employers.