Employers only have to read the following paragraph from JoeBiden.com to get an overall sense of what employment legal changes are likely under a potential Biden administration:

Yet employers steal about $15 billion a year from working people just by paying workers less than the minimum wage. On top of that, workers experience huge losses in salary caused by other forms of wage theft, like employers not paying overtime, forcing off-the-clock work, and misclassifying workers. At the same time, these companies are raking in billions of dollars in profits and paying CEOs tens and hundreds of millions of dollars.

Here are five employment proposals that would dramatically change the legal landscape facing employers across the country that would likely be enacted under a Biden administration:

1. Implement a $15 per hour national minimum wage

Biden will raise the federal minimum wage to $15 per hour and likely eliminate the tip credit.

2. Ban mandatory individual arbitration agreements

JoeBiden.com sets forth that “Biden will enact legislation to ban employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their right to class action lawsuits or collective litigation.”

Similar attempts to prohibit arbitration agreements have occurred in California.  In October 2019, Governor Newsom signed AB 51, which attempted to make it an unlawful employment practice for an employer to require employees or applicants to “waive any right, forum, or procedure for a violation of” the California Fair Employment and Housing Act (FEHA) or the Labor Code. In other words, employers could no longer force employees to sign arbitration agreements.  AB 51 was challenged in court by the U.S. Chamber of Commerce on the grounds that AB 51 was preempted by the Federal Arbitration Act.  In the case, Chamber of Commerce of the USA, et al. v. Becerra, et al., the judge issued a preliminary injunction blocking the state’s enforcement of AB 51, but the case is still being litigated in the Ninth Circuit.

More information about arbitration agreements can be found here.

3. Adopt the ABC test for independent contractors based on California’s model for the county

Biden promises that as president he would “work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws.”  The ABC test would be modeled after California’s ABC test set forth in AB 5, which was updated by AB 2257 in September 2020.  California’s ABC test makes it much more difficult for employers to classify workers as independent contractors.  As evident in the exclusions set forth in AB 2257, many industries and professionals in California have asked to be excluded from the ABC test, and ride-sharing companies, such as Uber and Lyft, are spending hundreds of millions of dollars to place Proposition 22 before the California voters this November to exempt the companies from the law.  Implementing the ABC test across the county would likely be a death blow to gig-economy companies, or at the minimum force the companies to dramatically change their business models.

4. Empower unions

A Biden administration would bring sweeping changes to the National Labor Relations Act (NLRA) and potentially would pass portions of the Protecting the Right to Organize Act (PRO Act).  He supports instituting financial penalties against companies that interfere with organizing efforts, which would include personal liability for company executives (and potential criminal liability for intentional conduct).  Biden also proposes banning state right-to-work laws and would require employees to pay union dues even if they are not part of a union.  Biden also wants to eliminate secret ballot voting for unions and would implement the “card check” process under which votes would be public.

5. Increase employment investigations

Biden would also increase employment oversight through various governmental agencies.  His administration would direct the Department of Labor to work with the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission, the Internal Revenue Service, the Justice Department, and state labor agencies to “aggressively pursue employers who violate labor laws.”  This initiative would also include an increase in the number of investigators in these federal agencies.

More information about Joe Biden’s employment initiatives can be found on his campaign website here: https://joebiden.com/empowerworkers/#