Biden Presidency: What HR Changes Are Next?

With the election of Joe Biden to the presidency, businesses can expect a number of changes that may impact human resources. We looked at President Biden's proposals to see which ones will have the most direct and immediate effect on the workplace if adopted.

Extending and Expanding FFCRA Leave

The Families First Coronavirus Response Act ("FFCRA") tax credit for employers who provide paid sick time to employees for COVID-19-related reasons has been extended through March 31, 2021. President Biden has asked Congress to extend the FFCRA further until September 30, 2021 and eliminate exemptions for employers with more than 500 employees and less than 50 employees. Additionally, President Biden proposes to increase the amount of leave to 14 weeks or more for caregivers of those with COVID-19 or who are in quarantine due to possible exposure as well as increase the maximum paid leave benefit to $1,400 per week.

Increasing the Minimum Wage

In his pandemic rescue plan, President Biden is pushing for an increase in the federal minimum wage from $7.25 per hour to $15 per hour. The Congressional Budget Office projected that would increase the wages of 17 million workers.

Strengthening Workers' Ability to Unionize

The Biden Administration supports the Protecting the Right to Organize (PRO) Act and other legislation that would restrict employers from some tactics to prevent unionizing. For example, the PRO Act would ban mandatory meetings for employees that are anti-union, shorten the timeline for union election campaigns, prevent delays in negotiating with new unions. Additionally, the Administration proposes to strengthen a union's ability to strike and collectively bargain.

Extending Rights to Independent Contractors

President Biden has proposed extending certain employee rights and benefits to independent contractors and increasing enforcement of misclassifying employees as independent contractors. This can have a significant impact on employers related to payroll taxes and who is eligible for benefits. The Biden Administration has proposed adopting California's ABC test nationwide. All 3 conditions of the test must be met to classify a worker as an independent contractor. The conditions are as follows:

• the worker is free from the control and direction of the hiring entity in connection with the performance of the work, 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; and
• the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Restricting Employment Agreements

The Biden Administration seeks to eliminate non-compete, non-poaching, and arbitration agreements in employment agreements or as a condition of employment. If these restrictions are put into place, employers will need to review and potentially update any agreements or policies related to these areas and likely more.

Enforcing Employment Laws and Regulations

The Biden Administration indicated that it will seek to have all government agencies enforce existing and future employment laws and regulations related to employers. These include wage and hour regulations, ACA requirements, and EEO laws. Employers should be sure that their employment policies are up to date and are adhered to as employers' compliance requirements are likely to increase and failure to comply will result in potential liability and damages.