Biden Administration Flips the Employment Law Script

Employment Law

Employers should keep a close eye on activities occurring in Washington, D.C., as the change in administration has already brought about a major shift in policy on employment-related issues.

Some of the notable actions to date include:

  • Sexual orientation and gender identity. On his first day in office, President Joseph Biden signed an executive order reinforcing that Title VII protects against discrimination on the basis of sexual orientation or gender identity. As part of the reversal from the previous administration, the order instructed federal agency heads to review existing orders, regulations, guidance documents, policies, programs or other agency actions to ensure conformity with this position. 
  • Leadership changes. President Biden wasted little time tapping new leaders for federal agencies relevant to employment law. Boston mayor Marty Walsh was nominated as the Secretary of Labor, while Charlotte A. Burrows was named chair of the Equal Employment Opportunity Commission (EEOC) and Lauren McFerran will take the helm as chair of the National Labor Relations Board (NLRB). Although the new leaders are Democrats, both the EEOC and NLRB still have Republican majorities. 
  • Federal minimum wage. The new president directed his administration to begin work on an executive order that would require federal contractors to pay a $15 minimum wage, signaling his plans to push for an overall federal minimum wage increase to $15. After President Biden asked the Office of Personnel Management to provide a report with recommendations to promote the bump in pay, Democrats introduced the Raise the Wage Act of 2021, which would raise the federal minimum wage to $15 by 2025 in stepped increases. The current federal minimum wage for federal contractors is $10.95 hour. 
  • Unemployment insurance. In a fact sheet released by the White House, President Biden suggested that the Department of Labor should clarify that workers have a federally guaranteed right to refuse employment that will jeopardize their health, and, if they do so, will still qualify for unemployment insurance. “President Biden believes that workers should have the right to safe work environments and that no one should have to choose between their livelihoods and their own or their families’ health,” according to the fact sheet. 
  • Diversity and equality. In another executive order, President Biden revoked his predecessor’s prohibitions on diversity training. In September 2020, President Trump banned the teaching of “divisive concepts” and “race or sex scapegoating” as part of the training for federal employees and contractors. Reversing course, President Biden said his administration has a “comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” The new executive order tasks the government with recognizing and working “to redress inequities in their policies and programs that serve as barriers to equal opportunity.” 
  • COVID-19 plans. As part of his $1.9 billion American Rescue Plan, President Biden proposed the renewal of emergency paid sick leave benefits under the federal Families First Coronavirus Relief Act (FFCRA), which expired on December 31, 2020, as well as expanding the coverage of such benefits. For more details on the proposal, see the story FFCRA Leave Voluntary: What Now?
Why it matters: Along with the continued reversal of positions taken by President Biden’s predecessor, employers can expect that many of the issues and policies advocated by the Obama administration will be revisited by the new president. In addition, any executive legislative efforts and proposals will likely face a favorable reception in Congress in light of its Democratic majority. Look for more alerts from our employment and labor team about important employer updates in the Biden administration’s first 100 days.


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