Before the 2020 election, then-US Presidential candidate Joe Biden vowed to be the “strongest labor president you have ever had.” Now having been in office for almost a year, how has President Biden changed the country’s labor environment, and what can employers expect out of his administration? In these slides, McDermott Partners Ron Holland and Kristin E. Michaels and McDermott Associate Philip Shecter provide insight into US labor activity and how the latest labor developments affect both union and nonunion employers.
As US Congressional Democrats continue their advocacy for a pro-worker agenda, multiple bills and rules could bring about sweeping changes to the civil rights and labor protections for millions of workers. These include:
The Equality Act
The Protecting Older Workers Against Discrimination Act
The Pregnant Workers Fairness Act
The Protecting the Right to Organize Act (PRO Act)
The US Department of Labor’s Overtime Rule
According to McDermott partner Ellen Bronchetti, the PRO Act, for example, would enshrine a strict ABC test into federal law that would analyze whether workers qualify as independent contractors.
“I think that because Biden has promised to strengthen worker protections and strengthen workers’ right to organize, I think employers need to keep a real close eye on this legislation or versions of the legislation or pieces that might get pulled out and put elsewhere,” Bronchetti said in an article published in Law360.
The Protecting the Right to Organize Act (PRO Act) passed the US House of Representatives for a second time this March. If it’s signed into law, the legislation would eliminate state right-to-work laws, increase the number of workers eligible for collective bargaining and ban mandatory arbitration agreements.
In this video, McDermott partner Ron Holland breaks down the PRO Act’s most significant changes to employment law.
The Protecting the Right to Organize (PRO) Act, union neutrality and changes to wages and enforcement of health and safety regulations are part of the legislative plan on its way to Congress. Of these proposals, the PRO Act, which has already passed the US House of Representatives, may face the most opposition in the Senate.
In a recent article by the Society for Human Resource Management, McDermott partner Ron Holland examines the potential impact of President Biden’s infrastructure package on the American workforce and economy.
President Joe Biden is expected to usher in a decidedly more worker-friendly environment than his predecessor, but whether Congress or the courts embrace similar pro-employee leanings over the next four years is anyone’s guess.
In a recent article for Law360, McDermott partner Daniel Doron weighs in on four top-of-mind questions about bias law that may soon be addressed under the Biden administration.
Employers grappling with independent-contractor classification had a busy 2020—and should expect a flurry of additional activity this year. Few areas in employment law are changing as rapidly. Last year, many concerned about the future of contractor-classification laws paid careful attention to California and AB 5, which went into effect on Jan. 1, 2020, and codified the California Supreme Court’s landmark decision in Dynamex Operations West Inc. v. Superior Court of Los Angeles.
In a recent article for Law360, McDermott partners Ellen Bronchetti and Ron Holland consider the impacts of the California law on the gig economy, employer classification tests and organized labor in the United States.
Businesses strive to draw the line correctly on who is an employee versus who is an independent contractor. New regulations issued by the Department of Labor (DOL) in early January promised to help. See, 29 CFR §§795.100. But by late January, those regulations under the Fair Labor Standards Act (FLSA) were frozen.
Unlike laws passed by Congress, administrative regulations are far more easily altered when a new president takes office. The regulations published by President Trump’s DOL in January had an effective date of March 8, 2021. Now, President Biden’s DOL will have an additional 60 days beyond that effective date to announce what will happen next.
Those new regulations provided a much simpler test for classifying workers. While including five factors, the results turned on two of those factors: (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit/loss based on personal initiative or investment. Most significantly, those regulations focused on the actual practices, rather than what may be possible.
This same issue may also arise under other federal statutes as well as state laws, including those governing on whom unemployment insurance taxes must be paid. With multiple statutes (each with its own distinctive test), drawing the line between independent contractors and employees correctly turns not only on meeting whatever the ultimate FLSA test turns out to be.
The most difficult is the so-called ABC test:
The worker is free from the control and direction of the hiring entity in connection with the work’s performance, both under the contract for the performance of the work and in fact.
The worker performs work that is outside the usual course of the hiring entity’s business.
The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.
That is the test that is embedded in proposed federal legislation: the Protecting the Right to Organize (PRO) Act. That is also now the official test for most jobs under most California laws.
Last year ended as an unprecedented and historic year, with far-reaching effects across diversity, equity and inclusion, employment practices and workplace standards. In a recent article for International Law Office, partners from McDermott’s Employment group highlight what changes are expected in 2021 and how these may affect employers and employees.
Joe Biden’s ascendance to the presidency not only spells doom for many of the Trump administration’s business-friendly employment policies; it also may place established tenets of federal labor law on the chopping block. Biden may bring with him to the White House an ambitious pro-labor platform aimed at giving workers and unions a leg up after four years in which the Trump administration moved the legal needle sharply in employers’ direction.
A recent article in Law360, featuring McDermott partner Ron Holland, outlines four areas that labor and employment lawyers should watch after the Biden transition.
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