What might a Biden presidency mean for labor and employment law?

It seems a near certainty that Biden has won the 2020 election despite less than spectacular turnout down-ticket for Democrats. Early speculation has begun how a Democratic administration might shape various policy areas. Labor and employment law are no exception to the speculation. Democrats typically are considered more labor friendly and advance, at least mildly, pro-employee law. Let’s jump into the fray and see how Colorado employees might fare under a Democratic presidency for the next four years.

Remembering Trump’s labor and employment law policy

Honestly, not much can be said about Trump’s labor and employment law policy over the past four years. The administration stocked administrative positions with Republican allies but otherwise made very little movement towards dismantling federal labor law or employment law. Certainly we could point to a few examples but mostly the Trump administration continued its normal modus operandi of not doing much at all. A pessimistic view of the administration may consider the administration too lazy to have done more, leaving actual policymaking to Senate Republicans and the handful of more motivated participants. An optimistic view may point out that the administration understood a substantial part of its base comes from blue collar workers who might be lost watching the administration take aggressive and apparent moves to dismantle job protections.

Instead, the administration’s labor and employment law legacy will come in the way of indirect effects. The Trump administration’s long term impact on labor and employment law will likely be felt over decades with the appointment of several young conservative Supreme Court justices who have and will maintain a pro-employer bench. The tax cuts passed during the Trump administration will likely continue to have a negative effect for most employees. The tax cuts promised job and wage growth but turned into the predicted payday for stockholders as companies used newly liberated financial resources for stock buybacks. Over the long term the decapitalization of businesses will require companies to oppress increased employee compensation and force reductions in force, especially as covid continues to put pressure on many service-based industries.

What may influence Biden’s labor and employment law policy?

Before considering individual policy issues, let’s first consider the stakeholders in a Biden administration and what they may push over the next four years. The traditional Democratic base is considered what are often called “special interests” by the right: people of color; unions; women; environmentalists; urban dwellers; academia and college-educated voters. This election, even more than 2016, saw something of a realignment. Biden pushed his credentials in the black community while veering the party to the right to try to capture disaffected conservatives. Other people of color were pushed to the side and while Biden enjoyed broad support among women, it was Trump who made an explicit plea to a group of women (suburban women). Biden campaigned hard in union heavy states like Pennsylvania and Michigan but made little open promise to do anything for union workers or lower paid workers in general. (Although he campaigned mildly in support of a minimum wage increase.)

When Biden takes office and has to pay his debts from the election, it is highly likely that he is going to offer little to the unions and other stakeholders who formed his base. Democrats are already openly discussing the need to compromise with the uncompromising Republicans. Biden, long on the right of the party, depicts himself as a regular guy from Scranton but his career in politics suggests otherwise. Unions fought hard to campaign for him and become a participant in his administration; however, even through the campaign Biden has surrounded himself with people with an even worse record towards worker rights. Biden’s voting record is not endearing. He voted for NAFTA and the TPP along with the 2005 bankruptcy bill that severely punished working people for debts while making it easier for business interests to wipe out their own.

Of course, there is also the matter of those Republican voters who pushed him to victory. It appears despite Biden taking the White House Democrats failed to motivate voters downticket. Current results show Democrats losing seats in the House along with losses at the state and local level. The only serious explanation is that Democrats failed to motivate voters for any reason other than orange man bad. Voters seem as lukewarm on the idea of Democratic leadership as they are Trump leadership. Democrats now have an example of how they can move to the right and take the White House. Unfortunately the party will likely move to the right while ignoring their losses downticket. Speaker Pelosi has already claimed the election as giving them a mandate to govern, an interesting opinion for somebody who lost supporters in the election. We should expect that Biden will capitalize on his “mandate” and govern from well into the right.

What a Biden labor and employment law policy might produce

Right wing media outlets from The Hill and onward might want to depict Biden as some socialist, labor extremist but that would be an about face for a politician with nearly fifty years of contrary experience. As discussed above, the Biden administration has fewer debts to pay to labor and working people than perhaps any Democratic president in the past hundred years. Biden could prove this wrong and pay his debts in the way of strong nominations to the EEOC, NLRB and federal judiciary. He could champion minimum wage increases and all his other labor and employment law campaign promises but there is little to suggest that is going to happen.

Wage issues

The Biden campaign supported pro-employee wage policies but signs are not promising we will see much movement in the next four years. Biden mildly campaigned in favor of a minimum wage increase to $15/hour but this was never much of a component of the campaign. Biden has never been a significant advocate of increasing minimum wage and if he governs to a coalition of Republican voters it is unlikely that will occur. Democrats have not been especially vocal at the federal level on minimum wage increases in more than a decade when minimum wage increased to $7.25 under a 2007 law.

Biden also claims support for the Paycheck Fairness Act which would strengthen the Equal Pay Act by narrowing the reasons why an employer can have disparate compensation between the sexes. Democrats may press to pass this law early in Biden’s term so they can point to a pro-worker accomplishment for the next four years. This would also put Republicans in the position of having to pass the law or lose out on the opportunity to make an appeal to suburban women in 2022 and 2024.

Labor Rights

Biden historically has talked up unions and worker rights despite not doing much about it in his long political career. We should expect some small acts by the administration but there is little historical evidence that Biden intends to expend the political capital necessary to strengthen organized labor. The proposed PRO Act would accomplish this goal. Biden claimed support for the legislation on the campaign trail but moving on it as president will take more than writing support on a campaign website. Biden will have to overcome the GOP majority in the Senate which seems unlikely to want to pass legislation designed to help a traditionally important Democratic support structure.

Like Obama, Biden will probably do a good job supporting the NLRB as a low key but critical benefit for organized labor. The NLRB rules on labor violations and a Democratic majority is likely to swing the board to pro-employee from Trump’s Republican majority.

Pregnancy Discrimination

In September the House passed the Pregnant Workers Fairness Act which would require employers to make reasonable accommodations for pregnancy and childbirth similar to those required by the Americans with Disabilities Act. Much like the Paycheck Fairness Act, this may pass the GOP Senate. The U.S. Chamber of Commerce supports the bill which is telling of Republican support.

Employment security

As a long time ally of business interests, Biden is unlikely to do much to reverse the mostly bipartisan assault of worker rights over the past several decades. He is unlikely to spend the political capital to champion a reversal of Republican tax cuts or support any green initiatives that risk business interests that might in turn lose his newly found base of Republicans. With a looming economic collapse due to college and housing debt, Biden is unlikely to do much to help workers protect themselves from the inevitable waves of unemployment.

Similarly, Covid-19 will remain a substantial issue for the next year or more. Biden is less likely to support blind openness through rising infection rates, certainly not to the detriment of Democrat governors around the country, but never expressed any real desire to support worker bailouts seen in other developed nations. Democrats support shutting down businesses to slow growth but their anemic support for the affected workers has understandably disconnected them from working class support. Biden is likely to continue this approach having given no indication he feels differently.

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