From making equal pay more of a reality to increasing minimum wage, pro-worker and pro-union labor policies, and more anti-discrimination protections, the new administration has stated support for many legislative and regulatory proposals that would completely change the employment and labor law landscape. With the victories in the Georgie Senate runoff elections (and the unified Congress which is the first in nine-year), employers should expect new and amended workplace laws and rules in 2021. Now that we have a better idea of what the next several years will look like, here are a few initiatives that will likely be set forth by the Biden administration.
Equal Employment and Paid Leave
President-elect Biden has publicly committed to supporting measures that aim to help even out the pay disparity. Specifically, Mr. Biden has agreed to sign the Paycheck Fairness Act during his term. Currently, an employer may pay any employee, for example, a male employee, more than a female employee where the reason for the disparity is based on a “factor other than sex.” The Paycheck Fairness Act would eliminate this flexibility and option, limiting such disparities to bona fide factors such as: education, training, or experience. If Biden signs this act into law it will make it easier for employees to pursue individual and collective/class actions against employers, alleging wage discrimination on the basis of race, sex, and national origin.
Broader Anti-Discrimination Laws
In the decision Bostock v. Clayton County, Georgia, the Supreme Court held that Title VII’s prohibition against sex discrimination encompasses, and thereby outlaws, discrimination on the bases of sexual orientation and gender identity. Mr. Biden has repeatedly stated that he plans on signing the Equality Act within his first 100 days in office. This Act, which has already passed the House of Representatives, would disallow discrimination with respect to employment, housing, education, and public accommodation on the basis of sexual orientation and gender identity, thereby codifying the Supreme Court’s ruling. Mr. Biden has also expressed that he supports expanding protections for pregnant, senior, and disabled employees.
Federal Paid Family Leave
Mr. Biden has stated his support for providing employees with up to 12 weeks of paid family and medical leave. In addition, he indicated that his proposal for paid leave would include provisions that are similar in the Family and Medical Leave Act (the Family Act), which has already been introduced by Congress.
Minimum Wage Hikes
Last week, we looked at a number of states that have increased the state mandated minimum wage. Well now the Federal government is getting into the game. The Federal minimum wage is currently less than half the highest state minimum wage. Over the last few years, state and local governments nationwide have passed laws that steadily increase their minimum wage rates. President-elect Biden plans to follow their lead – although no specific number has yet been released, Mr. Biden has hinted at $15.00/hour. Mr. Biden also believes in eliminating the inclusion of tips as part of the minimum wage and the subminimum wage for individuals with disabilities. With the senate now controlled by Democrats, the White House most likely will secure the congressional support that is necessary to increase the minimum wage, likely on an incremental basis over the next several years.
Overtime Rule Changes
Finally, President-elect Biden is expected to work with the Department of Labor to implement another increase to the minimum salary for the overtime exemption. As a reminder, in late 2019, the Department of Labor’s Wage and Hour Division issued a final rule regarding the threshold amount of salary necessary to exempt an employer from the obligation to pay overtime. The threshold since 2004 was $455 per week or $23,660 per year. In 2016, the Obama administration proposed a change to that rule to increase the threshold to $47,476. Litigation ensued, and a federal court in Texas issued an injunction, upheld by the Fifth Circuit, putting a hold on that rule.
The Trump administration rolled out a revised rule that took effect January 1, 2020. That rule raised the salary level for employees under the executive, administrative, or professional categories to $684 per week or $35,568 per year. That means that if an employee is paid a guaranteed weekly salary of that amount or more, they may qualify to be exempt from overtime under those executive, administrative or professional categories if they meet the duties requirements as well.
With the support of the Democrats, it is expected that the White House will seek to implement similar changes to the overtime laws through a mixture of legislative and agency rulemaking processes. In addition, if the Biden administration does revisit overtime regulations, it could try to change the duties test, too, as each of the three white-collar exemptions has slightly different criteria.
About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://