It may take a while before President-elect Joe Biden can fully begin with some employment-related plans, given the structure of two major federal agencies, the United States Gender Equality Commission and the National Labor Relations Board.
This is because both semi-independent agencies have a majority of Republican commissioners, whose terms do not expire until mid-202 at the earliest. The agencies' general councils are also Republicans.
In the meantime, a number of other employment-related issues will be addressed by the new administration, including those relating to the gambling industry, overtime, EEOC funding and the agency's vaccine policy.
The Biden administration's ultimate success in pursuing its agenda will depend, at least in part, on whether the Democratic Party will have a majority in the Senate, which rests on the results of next month's pair of U.S. Senate runoff elections in Georgia.
The EEOC has a 3-2 Republican majority with Republican President Janet Dhillon's term not expiring until July 2022, while General Councilor Sharon Fast Gustafson's term will expire in 2023.
The NLRB has three Republican members and a Democratic member, while the fifth seat remains open. Republican board member William Emanuel expires in August 2021
The historic trend has been for federal agencies including the EEOC and the Department of Labor to be active under democratic administrations, experts say.
In particular, the NLRB is known for flipping back and forth between pro-Republican and pro-democratic political issues depending on the administration, said David Barron, a member of the Cozen O & # 39; Connor PC in Houston.
At the EEOC, a major issue that is likely to be confronted is whether COVID-19 vaccines can be mandated by employers, says Andrew Doherty, Valhalla, New York-based national executive and professional risk solutions for USI Insurance. Services LLC.
He said that an indication of its possible policy is the agency's guidance in 2009 in connection with swine flu, where vaccination was encouraged but not required, with employers obliged to provide reasonable adjustments based on workers' disabilities or religious.
This guide was recently updated but did not focus on a vaccine.
Heidi Reavis, managing partner of Reavis Page Jump LLP in New York, which represents both employers and employees, said one of the first things the Biden Administration will focus on is "trying to reverse some of the practical barriers that exist at the EEOC."
She said that the number of investigators has been reduced by about half in recent years, despite a wave of further allegations stemming from COVID-19 and the Black Lives Matter movement.
A tool at President Biden's disposal will be executive orders. For example, he is expected to issue his own executive order to recall one issued by President Trump in September that bans the training of federal government employees and federal contractors and subcontractors who deal with unconscious racial or sexual prejudice, says Lawrence Lorber, Labor. and employment councils. at the Seyfarth Shaw LLP in Washington.
Observers also say they expect a more aggressive work environment administration during the new administration.
"I think one of the immediate priorities of the Biden-Harris administration" will push for the adoption of an OSHA emergency standard for COVID-19, says Ryan A. Glasgow, a partner with Hunton Andrews Kurth LLP in Richmond , Virginia.
"A number of states have already done so," he said, but OSHA's guidance so far "has been very limited."
Mr. Biden has appointed former OSHA chief David Michaels to his Transition COVID-19 Advisory Board.
Many observers expect the Biden Administration to be active in making it easier for independent entrepreneurs, including gig-economy workers, to be considered employees.
A change in player work would have a significant effect on the employment arena, affecting many federal agencies and statutes, says Suellen Oswald, principal of the Jackson Lewis PC in Cleveland.
Another priority will be to pay equity and issues of wage discrimination, experts say. That was one of the priorities of the Obama-Biden administration "and Biden was very vocal on these issues," Glasgow said.
Tiffany Brosnan, a partner with Snell & Wilmer LLP in San Diego, said she believes a national law on sick leave will eventually be implemented. She said the federal government "dipped its toes in" with the Families First Coronavirus Response Act, which would expire at the end of this month, and that she expects "this administration will dive all the way."