The First 100 Days of the Biden Administration: Labor and Employment Activity

By Brianne Dunn, William Pokorny, Michael Warner and Tracey Truesdale - Franczek, P.C.

February 26, 2021

Each Friday during the first 100 days of the new administration, we will provide a recap of significant initiatives and events that will impact employers.

In week six, the Administration’s labor and employment activity includes a major roadblock to the $15 federal minimum wage increase, an extension of unemployment benefits by the DOL, and unexpected silence by the administration in a national union showdown.

Fight for $15 Takes Hit; Likely Removal from COVID-19 Relief Bill

As previously projected, the hotly contested COVID-19 Relief package provision increasing minimum wage to $15.00 has hit further roadblocks, and this time it appears to be fatal. Senate parliamentarian Elizabeth MacDonough determined that the proposed minimum wage increase does not have a sufficient impact on the federal budget to qualify for budget reconciliation, the process that allows Congress to fast track legislation like the COVID-19 relief bill.

What’s to Come: Democrats are expected to remove the minimum wage increase proposal from the COVID-19 relief bill and explore other means of increasing minimum wage.

DOL Extends UI Benefits to Individuals Refusing to Return to “Unsafe” Work

The Department of Labor released guidance extending unemployment benefits to workers who refuse to return to a job that is unsafe. The benefits eligibility now applies in circumstances where a worker refuses to return to work or accept an offer of work at a worksite that, in either instance, “is not in compliance with local, state, or national health and safety standards directly related to COVID-19.” These health and safety standards include those related to the wearing of face coverings, physical distancing, and the provision of personal protective equipment consistent with public health guidelines. This extended eligibility is specific to Pandemic Unemployment Assistance (PUA), a type of benefits created and federally funded by the 2020 CARES Act.  PUA covers self-employed individuals, independent contractors, and other workers who aren’t covered by traditional unemployment insurance programs. The guidance now extends the PUA benefits to three categories of workers: (1) individuals who refuse to return to work that is unsafe or to accept an offer of new work that is unsafe; (2) certain individuals providing services to educational institutions or educational service agencies; and (3) individuals experiencing a reduction of hours or a temporary or permanent layoff.

What’s to Come: While the guidance delivers on the Biden administration’s promise to ensure benefits are available to people who refuse work that would jeopardize their health, assuring integrity of the program and the respective distribution of benefits will cause further strain on state employment agencies. The guidance defers much of the program implementation, including the detection of fraudulent claims, to the states, leaving room for discrepancies in employee qualification and distribution across state lines. The program also allows the individuals claiming these benefits to self-certify their selected reason(s) for eligibility, which will heighten the incidence of already widespread fraudulent unemployment claims.

Biden Silent on Amazon Union Fight

Despite the unprecedented number of union-friendly policies and personnel changes made by President Biden in his first month in office, the administration has declined to enter the fray over the union showdown at Amazon, citing White House policy not to comment on the merits of specific cases that are currently before, or likely to be before, the National Labor Relations Board. In a mailed ballot election that began on February 8 and runs through March 29, 6,000 Amazon warehouse employees are voting whether to join the Retail, Wholesale and Department Store Union. The election marks the first Amazon warehouse union vote since a group of technicians in Delaware voted against unionizing in 2014.

What’s to come: Amazon provided financial backing to the Biden campaign and has also committed to assist the new administration in the fight against COVID-19. However, it’s no secret that Biden also had strong backing from organized labor and has articulated that it is the administration’s position to encourage union organizing and collective bargaining. Senator Bernie Sanders and former Georgia state representative Stacey Abrams have affirmatively expressed their support of Amazon workers’ efforts to organize.