A New Presidency – What to Expect

By Matthew R. Courtner

On January 20, 2021, Chief Supreme Court Justice John Roberts delivered the oath of office to Joe Biden, inaugurating him as the 46^th President of the United States. A new administration naturally yields many changes. And employment laws are no exception. Under President Biden, a number of employment law changes may occur. In this article, we will briefly highlight some of the significant employment law changes that President Biden and his administration are likely to make.

FLSA – Salary Level

As most employers will recall, near the end of his term, then President Obama’s Department of Labor (“DOL”) sought to increase the salary level for the so-called white-collar exemption from $23,660 to $47,476. Under President Trump, the DOL stopped the DOL’s efforts to raise the salary level to $47,476. Instead, in 2019, the Trump DOL issued a final rule raising the salary level to $35,568, effective January 1, 2020. However, the Biden Administration will likely seek to increase the minimum salary level. Although the exact increase is not yet known, President Biden will likely seek a level closer to what President Obama previously proposed. President Biden’s effort to increase the salary level will follow the same formal notice and comment period as the DOL did under Presidents Obama and Trump. 

FLSA – Minimum Wage

Another significant change President Biden and his administration will seek is an increase to the FLSA’s minimum wage. In the initial proposal of his first COVID-19 relief bill, the American Rescue Plan, President Biden called for a $15 minimum wage. See https://www.whitehouse.gov/briefing-room/legislation/2021/01/20/president-biden-announces-american-rescue-plan/. At this time, it is unclear whether Congress will ultimately include the $15 minimum wage increase in the COVID-19 relief it passes. However, whether it is now or later, President Biden intends to push for a substantial increase in the federal minimum wage. 

Independent Contractor Test

The Biden DOL is also likely to rescind or revise the Trump DOL’s guidance on the independent contractor test. On January 6, 2021, the Trump DOL announced a final rule, which is set to take effect March 8, 2021, for determining whether a worker is an independent contractor or an employee under the FLSA. See https://www.dol.gov/agencies/whd/flsa/2021-independent-contractor. Under the Final Rule, the Trump DOL emphasized using the “economic realities” test. President Biden will likely rescind the Final Rule before it takes effect. If not, then President Biden will likely revise the guidance in the future. 

Joint Employer Test

On January 12, 2020, the DOL announced a final rule, which was effective March 16, 2020, on determining when an employee works for a joint employer. See https://www.dol.gov/agencies/whd/flsa/2020-joint-employment. The final rule implemented a four part-balancing test to determine if an employee is working directly or indirectly in the interest of an employer. Shortly after implementation, eighteen states and the District of Columbia sued to enjoin the final rule, arguing that its implementation violated the Administrative Procedures Act. On September 8, 2020, the district court agreed and vacated part of the final rule, concluding the final rule was contrary to the FLSA and was arbitrary and capricious. See New York v. Scalia, No. 1:20-cv-1689, – – F. Supp.3d – -, 2020 WL 5370871 (S.D.N.Y. Sept. 8, 2020). The Trump DOL appealed the district court’s ruling to the Second Circuit Court of Appeals. That case is still pending before the Second Circuit. However, with a change in administration, the Biden administration will likely abandon the appeal; thus, the district court’s opinion will stand. Biden’s DOL will likely revise the guidance on the portion of joint employer test that the court did not vacate. 

Equal Pay

A Biden led administration will likely focus on equal pay laws. President Biden has expressed his support for equal pay protection. See https://joebiden.com/womens-agenda/. Under the Equal Pay Act, an employer may pay male and female employees differently if the pay disparity is based on “a factor other than sex”. Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir. 2006). As such, an employer may pay a male employee more than a female employee. Last session, democrats introduced the Paycheck Fairness Act in Congress with the aim of eradicating pay disparity between men and women. See https://www.congress.gov/bill/116th-congress/senate-bill/270; https://www.congress.gov/bill/116th-congress/house-bill/7/text. This Act would have limited pay disparity to objective factors, such as education and experience. President Biden has stated that he “strongly supports” this Act. See https://joebiden.com/womens-agenda/.

Paid Leave

Leave under the Family Medical Leave Act is currently unpaid. President Biden will likely advocate for FMLA type leave to be paid. Last session, a contingent of democratic senators introduced the Family and Medical Insurance Leave Act, which would provide workers with up to 12 weeks of paid leave. See https://www.congress.gov/bill/116th-congress/senate-bill/463/text. President Biden will likely support similar legislation. In fact, in the American Rescue Plan, President Biden included an emergency paid leave program through September 30, 2021. See https://www.whitehouse.gov/briefing-room/legislation/2021/01/20/president-biden-announces-american-rescue-plan/. 

Anti-discrimination Laws

In June 2020, the Supreme Court held that sex discrimination under Title VII includes discrimination based on sexual orientation and gender identity. See Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020). Last session, the House introduced the Equality Act to expand the prohibition of discrimination based on sexual orientation and gender identity. See https://www.congress.gov/bill/116th-congress/house-bill/5/text. This Act would have prohibited discrimination because of sex, gender identity, and sexual orientation in employment, housing, education, public spaces and services, and federally funded programs. President Biden has pledged to make the Equality Act “a top legislative priority” during the first 100 days of his administration. See https://joebiden.com/lgbtq-policy/. In the meantime, President Biden signed an executive order on his first day in office designed to “prevent[ ] and combat[ ] discrimination on the basis of gender identity or sexual orientation.” See https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/. Thus, President Biden will likely further broaden anti-discrimination laws based on gender identity and sexual orientation. 

Age Discrimination

President Biden has pledged to “[p]rotect older Americans against harmful age discrimination” by “put[ting] in place workplace safeguards [that will] mak[e] it easier for older workers to prove that they were treated unfairly at work.” See https://joebiden.com/older-americans/. Under the Age Discrimination in Employment Act, the employee must prove that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Serv., Inc., 557 U.S. 167 (2009). This causation standard prohibits mixed-motive claims. President Biden will likely support legislation that will abolish the but-for causation standard and allow employees to prove age discrimination easier and rely upon a mixed-motive theory. 

In sum, significant employment law changes are likely on the horizon. And the Biden administration will no doubt implement employment law changes beyond the ones highlighted in this brief article. As such, employers should be on the lookout for employment law changes in the near future.