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.

March 12, 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 eight, the Administration’s labor and employment activity includes the passage of the $1.9 trillion COVID-19 relief bill, the House’s passage of the PRO Act labor law reform bill, and the upcoming Senate confirmation of Julie Su for Deputy Labor Secretary.

Biden Signs COVID-19 Relief Plan Without Minimum Wage Increase or FFCRA Mandate

President Biden signed the long-awaited COVID-19 relief plan into law yesterday. While the bulk of the legislation is aimed at providing immediate financial relief to individuals and businesses impacted during the pandemic, noteworthy is that the final law does not include employer mandates that were part of the originally proposed legislation:  

No minimum wage increase. As previously reported, the final plan does not include an increase to the federal minimum wage.

No mandatory extension or expansion of the FFCRA. President Biden’s original proposed American Rescue Plan had contemplated extending mandatory emergency paid sick and family leave under the Families First Coronavirus Response Act (FFCRA) to September 30, 2021 and expanding of leave eligibility to include employers with more than 500 employees, healthcare workers, and first responders. These items were not part of the House bill, nor were they proposed by the Senate. The only leave mandate in the legislation is provision of FFCRA-like benefits to federal and postal service employees who were excluded from the FFCRA. What this means for employers is that neither public sector employers nor private sector employers with 500 or fewer employees are required to grant additional FFCRA leave.

Extension of tax credits for voluntarily provided FFCRA leave. Although the law does not require employers to offer FFCRA leave, Congress did extend the tax credits for private sector employers with fewer than 500 employees who voluntarily provide their employees with FFCRA sick and family leave. Tax credits have been extended another six months, through September 30, 2021. The FFCRA-related tax credit provisions:

• Expand the tax credits for paid sick leave and paid family leave to include the following qualifying reasons:

- The employee is obtaining a COVID-19 vaccination;
- The employee is recovering from any injury, disability, illness, or condition related to the vaccination; or
- The employee is seeking or awaiting the results of a diagnostic test or medical diagnosis for COVID-19 (or the employer has requested such a test or diagnosis).

• Add non-discrimination rules to provide that no tax credit is available if the employer, in determining availability of the paid leave, discriminates against highly compensated employees, full-time employees, or employees on the basis of tenure with the employer.
• Reset the 10-day limit for the tax credit for paid sick leave under the FFCRA beginning April 1, 2021. As a result, employers can opt to provide employees with an additional 10 days of FFCRA paid sick leave beginning April 1 and will be eligible for a tax credit for doing so.

House Passes Pro-Union PRO Act, but Passage in Senate Is Doubtful

This past week, the House of Representatives passed the Protecting Right to Organize (PRO) Act, a massive overhaul of federal labor law that would make sweeping changes to the National Labor Relations Act. The PRO Act is a legislative priority for organized labor groups and brings unprecedented protections to organized labor groups including the following:

• Overturning state “right to work” laws that allow employee opt-out of paying union dues in unionized workplaces;
• Giving the National Labor Relations Board (NLRB) the power to fine companies engaging in unfair labor practices;
• Allowing union elections to be held off of company premises and to use electronic ballots;
• Barring employers from ‘retaliating’ against union organizing efforts (this includes barring employers from holding ‘captive audience’ meetings where employers present anti-organizing messages to workers);
• Allowing independent contractors to be unionized.

What’s to come: If passed, this legislation would result in the greatest change to federal labor law since the New Deal.  It would strongly tip the scales in favor of unions in organizing campaigns and dramatically increase the risk and potential liability resulting from unfair labor practice violations. The bill faces strong opposition from the business lobby and is expected to face a Senate Republican filibuster and potentially opposition from moderate Democrats.

NLRB Nixes Proposed Rule on Student Worker Unions

The NLRB has withdrawn a proposed rule that would have prevented paid teaching assistants and other student workers at private universities from forming or joining a union.

The proposed rule would have established “that students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not “employees” within the meaning of Section 2(3) of the National Labor Relations Act”. In a Federal Register announcement dated March 9, 2021 but not released until this morning, “The Board has decided to withdraw this rulemaking proceeding at this time in order to focus its limited resources on competing Agency priorities, including the adjudication of unfair labor practice and representation cases currently in progress”.

What’s to come: The proposed rule’s withdrawal signals that student workers at private universities will retain their right to unionize under the Biden administration. The NLRB has flip-flopped on this issue over the past two decades. Organizing rights were given to student workers in 2000, rescinded in 2004, and restored in 2016. The now-withdrawn proposal was published under the Trump administration in September, 2019.

Upcoming Nomination Hearing for DOL Deputy Julie Su

The Senate confirmation hearing for U.S. Department of Labor Deputy Secretary, Julie Su, is scheduled for Tuesday, March 16. It is anticipated to be a partisan battle with tough questions coming from Republicans.

What’s to come: Su has the support of President Biden, workers rights groups, union leaders, and some bi-partisan Asian-American lawmakers. Nevertheless, she faces scrutiny in connection with the State of California’s payout of $11B in fraudulent unemployment insurance claims and its slow response to act on it. Su’s confirmation hearing will be a pulse check on the Republican temperament to the administration’s labor-friendly policy and personnel changes since January.