Archived Webinar

What Newspapers Can Expect from the Biden-Harris Administration


Presented by Seyfarth Shaw

Our presenters:

Topics on the agenda:
personnel serving on President-Elect Biden's transition team and anticipated appointments in the Biden Administration, EEO/EEOC/OFCCP, National Labor Relations Board and labor management issues, OSHA and wage-hour enforcement, Fair Labor Standards Act, the Affordable Care Act, and immigration issues.

The transition: Leon Rodriguez said a transition team tells you a lot about how an incoming Administration intends to govern. The Biden transition team is comprised of individuals from left/center advocacy organizations, labor unions and academia.  What he doesn’t see are people from the business community.

Marty Walsh, currently mayor of Boston, is the intended nominee as Secretary of Labor.  Rodriguez said Walsh comes from the labor union world.  While his points of view are grounded there, he is seen as someone who is a pragmatist and who the business community will be able to have dialogue with.

What to expect from the EEOC: Larry Lorber noted that the five-member EEOC currently is comprised of three Republicans and two Democrats.  While the chair will shift from Janet Dhillon (R) after the inauguration, Republicans will still make up the majority through July 2022, when Dhillon’s term expires (unless any of the Republicans leave sooner).

The EEOC has been pouring out guidance documents over the last three weeks. Among the actions employers can expect going forward: an increase in religious discrimination enforcement cases, a great deal of focus on legislation brought up in the last session of Congress (Protect Older Workers Against Discrimination Act, Pregnant Workers Fairness Act, Equality Act and the Paycheck Fairness Act), a focus on compensation and the use of procurements to deliver labor and employment initiatives (to deliver things like paid leave).

Labor/Management issues: Brian Stolzenbach addressed National Labor Relations Board issues and shared the following quotes showing the direction President-Elect Biden plans to take:

  • “[I’m going to be the] strongest labor President you have ever had.”
  • “I want you to know I’m a union guy. Unions are going to have increased power.”
  • “[I will} create a cabinet-level working group that will solely focus on promoting union organizing and collective bargaining …” (from The Biden Plan for Strengthening Worker Organizing, Collective Bargaining and Unions)

Stolzenbach believes legislative priorities will include: Multiemployer Pension Fund Reform and the PRO Act (a union-friendly piece of legislation that he thinks has virtually no chance of passing the Senate, as currently written).

What we can expect to see:  Possible rulemaking by the National Labor Relations Board (with regard to Joint Employer and Quickie Elections), Persuader Activity from the Department of Labor and various Executive Orders.

Stolzenbach said it: “The traditional means of changing the law in the federal labor relations sphere for private employers is simply deciding cases a different way.” The current general counsel’s term (the chief prosecutor for the National Labor Relations Board) expires in November of this year and two additional seats on the board will be filled by members of the president’s party later this year.  So, it will be several months down the road before we get to a point where the various pieces are in place to shift the balance. 

Stolzenbach said it: “One thing I’d say about the possible nominees we’re hearing about on this front is that, quite frankly, management and employers could do a lot worse than the folks whose names have been banded about as serving as general counsel and board members.”

Union vs. non-union: The NLRB has an effect on both types of companies.  Stolzenbach said we are likely to see a flip — going back to giving employees the right to use their workplace email for union activity, a return to micro-units in organizing, leeway for offensive statements and strict scrutiny of workplace policies.  Unionized workforces may see the requirement to bargain over discipline and discharge immediately after union elections (even before they have a signed contract), increased hostility to a defense that employers don’t have to bargain with a union over certain things, and no inherent ability to stop dues check-off upon contract expiration.

OSHA and wage-hour enforcement: Scott Hecker, who previously worked with the Department of Labor for about 12 years, expects to see COVID-19 emergency temporary standards come from OSHA.  He also expects to see a change in the way recordkeeping/records used in enforcement are handled, and for OSHA to pursue more egregious cases and implement policies to address workplace violence and more.

In the wage-hour space, expect OSHA to send a consistent message that persistent, egregious and workplace-wide infractions of the law will be met with significant consequences.

Bad actors, beware: Under the Biden Administration, “bad actors” will face increased enforcement and OSHA will use data to identify employers to target, as well as publicity as a deterrence.

Fair Labor Standards Act: Camille Olson talked about the continued viability of three key Trump Administration rules that will be very important to members of America’s Newspapers:

  • The Trump Administration recently issued its Final Rule on Independent Contractors. It is scheduled to become effective March 8, 2021, but significant questions remain as to how much relevance it will have and what actions may still be taken in Congress, in the courts or by the Department of Labor. The Final Rule reaffirms an “economic reality” test and identifies and explains two core factors and three additional factors to be considered.  Read more (including examples from the newsroom)
  • Joint Employer Regulation – A recent federal court decision invalidated the DOL’s Joint Employment Rule (right to control test). Enjoined by the Southern District of New York because it departs from economic dependence, Olson said it remains to be seen what other courts will do. Read more
  • Salary Thresholds for Exempt Status – Under the Trump Administration, the minimum salary for exempt status workers was increased from $23,660 to $35,668. She said it: “There is very likely going to be an additional increase. The Obama Administration rule that was passed would have increased the minimum salary to $47,476 and also was going to institute annual increases — based on various factors.  I think you’re going to see a return to that … with respect to your exempt employees.”

Olson also identified the following Biden Administration priorities:

  • Federal minimum wage increase to $15 by 2026.
  • Broaden the definition of joint employer.
  • Broaden the definition of independent contractors. When talking about independent contractors for wage-hour purposes, Olson said it is important to note that newspapers have a specific exemption in Section 213(D) of the Act for anyone engaged in the delivery or distribution of newspapers or shopping news to the ultimate consumer (minimum wage, overtime, recordkeeping and child labor do not apply to those workers). She said it: “That is very unlikely to change in the Biden Administration.”
  • Increased enforcement and regulatory action by DOL.

Affordable Care Act: Saying that there are so many variables and potential outcomes that could take place, Scott Mallery offered a high-level look at changes the Biden Administration might bring. With a narrow Democratic majority in the Senate, he said to expect legislation designed to increase coverage. The biggest potential policy changes involve:

  • Section 1332 waiver guidance.
  • Increased subsidies and tax credits through the elimination of the so-called “family glitch.”
  • Additional funding for navigators, marketing, outreach and state-based reinsurance or subsidy programs.
  • Public option similar to Medicare for all ages / lowering Medicare age.
  • Reinstating individual mandate penalty.

Immigration: A lot has happened in the immigration space this year that affects employers, including: travel restrictions targeting employer-based immigrants and proposed regulations concerning H-1B classification. Leon Rodriguez said it is unclear how these areas will be impacted by the Biden Administration.

Expected priorities for the new Administration include: DACA restoration, refugee and asylum reform, border security/Central America migration and determining where business immigration fits.

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