Beltway Buzz Ogletree & Deakins
Former vice president Joseph Biden is now President-elect Joseph Biden. Democrats have managed to hold the U.S. House of Representatives, but they will be working with the slimmest House majority in years. Control of the U.S. Senate is still not known at this time, though Republicans enjoy a 50–48 majority as we await two runoff elections in Georgia scheduled for January 5, 2021. If Democrats win both of those races, they will seize control of the upper chamber, as the vice president (who under the Constitution of the United States also serves as president of the Senate) can provide a tie-breaking vote in the event of a 50–50 deadlock. Any other outcome in Georgia will tilt the Senate balance in favor of Senator Mitch McConnell (R-KY) and the Republicans.
While the results of the congressional elections may put a damper on a robust Democratic legislative reform agenda, the Biden presidency will still bring a dramatic shift to the federal labor and employment policy landscape. The 180-degree turn in regulatory employment policy priorities that will likely result will undoubtedly create uncertainty for employers, which are already dealing with a pandemic and an unstable economy. Set forth below are the major labor and employment policy changes to anticipate for 2021.
I. Executive Actions
The quickest and easiest way for newly sworn-in President Joe Biden to initiate policy changes will be by rescinding certain executive orders issued by then former president Donald Trump and issuing his own executive orders. Revoking myriad Trump executive actions relating to immigration will top the list, including those relating to refugees and asylees, certain COVID-19–related travel restrictions, and the ban on certain nonimmigrant visas (Presidential Proclamation 10052 of June 22, 2020). In turn, Biden is likely to reinstitute the Deferred Action for Childhood Arrivals (DACA) program, as well as the temporary protected status of certain eligible nationals.
In the employment law space, Biden is expected to revoke President Trump’s Executive Order on Combating Race and Sex Stereotyping, which is opposed by civil rights groups and members of the business community. It is very possible Biden may follow this action with a proactive requirement on federal contractors to require diversity and inclusion or implicit bias training and programs. Additionally, Biden may also attempt to resuscitate a version of former President Barack Obama’s Fair Pay and Safe Workplaces executive order.
II. Congress: A More Modest Agenda
Leading up the election, there was much speculation regarding whether the Democrats would abandon the legislative filibuster in the event that they took control of the Senate. Such a move would allow senators to pass legislation with a simple majority vote (51 votes), rather than the 60-vote threshold that is currently required. Eliminating the filibuster would be a monumental and historic change to the way bills are drafted and passed in Congress. In this scenario, a Senate without the filibuster would enable Democrats to expand the number of seats on the Supreme Court of the United States and to pass legislation dealing with the COVID-19 crisis, voting rights, gun control, climate action, LGBTQ rights, and more.
The elections and political aftermath, however, have created a situation in which the filibuster will more than likely survive. At best, the Democrats would have 50 senators in 2021. A tiebreaking vote by a Vice President Kamala Harris would, therefore, appear to give the Democrats the necessary votes to scrap the filibuster, but Senator Joe Manchin (D-WV) has already stated that he will not vote to eliminate the filibuster, and others in the Senate Democratic Caucus have expressed similar concerns. Thus, with the filibuster likely remaining intact, Republicans will be better able to thwart the Democrats’ legislative efforts, even if the Democrats win both Senate races in Georgia. Similarly, if Republicans prevail in one or both of the Georgia races, Senate Democrats will be able to filibuster Republican bills. (The White House and House of Representatives would also obviously work as a check on the Senate.)