Labor & Employment – New And Renewed Guarantees For Job Creation – Employment and HR

To print this article, all you need is to be registered or login on Mondaq.com.

While high unemployment has been a serious discussion in the
world of COVID-19, President Joe Biden has promised plenty of new
jobs to come now that he’s in the White House. How will any new
laws or policy direction shape labor and employment regulations for
companies? Will there be significant change that impacts the way
businesses operate in Biden’s first 100 days?

In the fourth episode of Insider Insights: 100 Days of Biden,
Joe Centeno, Co-Chair of Buchanan’s Labor & Employment
section; and Tim Costa, a principal on Buchanan’s Federal
Government Relations team in D.C., discuss what’s possible in
job creation under the new administration.

In this episode, Tim and Joe cover:

• How President Biden can achieve the task of adding new
  jobs.
• The contrast between President Biden and President Trump when
  it comes to keeping manufacturing jobs in the U.S.
• The future of the $15 per hour minimum wage and how that gets
  achieved.
• How COVID-19 impacted the labor market and whether the new
  COVID-19 relief bill can create new jobs.
• How the transmigration of workers from offices to the home will
  impact the labor market moving forward.
• California’s Proposition 22 – what it does and
  whether this law can and will be adopted in other states or even
  nationwide.

You can listen to Insider Insights: 100 Days of
Biden in many places: on Apple Podcasts, Google Podcasts, Spotify, Pocket Casts, and more.

Listen to the
Podcast

Podcast Transcript

Joe Centeno:  Hello and welcome
to Insider Insights: 100 Days of Biden, a podcast
from Buchanan Ingersoll & Rooney. I am your co-host today
Joseph Centeno, a shareholder at Buchanan and co-chair of the
firm’s Labor, Employment, Benefits and Immigration section. So
far on this podcast series, we have covered how the Biden
administration may approach life sciences, transportation, and
healthcare during the president’s first 100 days in office. If
you have not listened to those yet, I definitely suggest you check
them out.

On today’s episode, I am joined by my colleague, Tim Costa,
a principal on our government relations team in D.C. We are going
to talk about how President Biden and his team may address labor
and employment during his first three months in office. Tim, thanks
for co-hosting with me.

Tim Costa:  Joe, thanks for having me.

Joe Centeno:  Tim, in contrast to former
President Trump, President Joe Biden is poised to be a much more
labor friendly Commander in Chief then his predecessor was. Yet how
that viewpoint on labor ends up manifesting itself in the form of
policies remains to be seen. Under President Trump, a core focus
when it came to labor and employment was his push to keep
manufacturing jobs here in the United States and penalize companies
that took the jobs overseas. How will the Biden administration
approach this? Is there any direct action he is taking, or will
take, to change what his predecessor put in place?

Tim Costa:  I think President Trump
definitely used the carrot and stick approach. There were even some
high-profile incidents when he was publicly trying to shame
companies that were trying to take work overseas. He also worked
with Congress to create a regulatory and a tax incentive that made
it more advantageous for companies to keep jobs here, or even in
some instances, bring jobs back. I think the focus from President
Biden and Congress is really going to be aimed in large measurement
at China.

President Biden has identified four critical sectors for the
American economy that he wants to figure out ways to rescue jobs
and ensure the supply chain for those critical elements. Here, they
focus on semiconductors, advanced batteries, pharmaceuticals, and
critical minerals. I think you are going to see both the President
and Congress, really in a bipartisan fashion, try and tackle those
issues and figure out how to resurge those supply chains here in
America or at least, in some combination, with more friendly
allies.

The United States finds itself so dependent on China like it did
in the early parts of COVID-19 for things like PPE and, more
recently, some of the challenges faced by the auto industry, with
their challenges getting a sufficient number of semiconductors to
keep up with manufacturing here in the United States. So, I think
that’s one of the areas where there is a lot of bipartisan
interest. I think you might see a different tone from President
Biden, but I think in large measure, Congress and the President are
going to continue to focus on bringing some of those critical
sectors either back to our shores or at least back to friendlier
places.

Joe Centeno:  Tim, there has been plenty
of discussion across the political spectrum about increasing the
federal minimum wage to $15 an hour and how that can be done. Is
this a realistic goal for the administration, and how do you think
that happens?

Tim Costa:  Well, Democrats tried to get
the $15 minimum wage included in the reconciliation bill. That was
probably their best opportunity to get this done. It failed. There
is bipartisan interest in raising the minimum wage, likely at a
more gradual level – in certain instances, only if tied to
other things. I think it is an issue that is not going away. We do
have a significant number; I think it was 42 members of the Senate
and a significant number of House Democrats that still want to push
for an increase to $15 an hour. That does seem to be unlikely, but
I think you are going to see efforts to raise the minimum wage. My
hunch is that outside of a reconciliation process that there will
be an effort. Perhaps even a successful effort to raise the minimum
wage to some number, $10 or $11 an hour, gradually over the next
several years.

Joe Centeno:  I think I heard that Senator
Manchin had suggested $11 an hour at some point. Given that he has
his newfound power in the Senate.

Tim, certainly COVID-19 has had quite an impact on employment in
the United States and across the globe. Can new jobs be created
through a COVID bill?

Tim Costa:  Well, it is interesting that
the COVID bill really focuses somewhat less on job creation. There
is a lot of what I will call “job preservation” in there.
There are efforts to stimulate the economy. I would say through the
$1,400 checks to certain households and changes to the earned
income child tax credit, a lot of that stuff is there to help
people on the lower end of the income scale weather the storm of
COVID. But really, what you saw in the bill mostly is significant
bail out of states and localities that will certainly help public
sector unions and other programs that are important at the state
and local level. Because of reduced tax revenues some have
certainly been in jeopardy. I think most people agree at this
point, the best way to get the economy moving is to get the economy
open. You already saw certain states, several large states,
virtually reopen their economies in full. You now have several
approved vaccines here in The United States, and while there have
been some challenges to the distribution, I think you see millions
of people now and older Americans getting vaccinated. I think that
alone is really going to boost public confidence and get people
back to work.

Joe, let’s turn the tables and get your perspective on a few
topics. You mentioned at the beginning of the podcast that
President Biden is likely to be a much more labor friendly
president than Donald Trump. How do you see that shaping out?

Joe Centeno:  You know, traditionally
Republican administrations are focused on educating employers on
the law, whereas democratic administrations traditionally are
focused on enforcement. That contrast will hold true, I expect,
with the Trump-Biden change. We know that President Biden has been
a significant traditional labor and union supporter. We know that
his Secretary of Labor appointee, Marty Walsh, is a labor advocate.
So, we expect to see President Biden be a more labor-friendly
president who will appoint labor friendly appointees to the
National Labor Relations Board, The Department of Labor, the EEOC,
and to all of the agencies that create the policies for employers
and employees.

Tim Costa:  I noticed with President
Biden, when I watched him speak about jobs and job creation, he
oftentimes qualifies and even mentions labor unions in the same
breath.

Moving on . . . over the past year, we have seen perhaps the
largest transmigration of employees ever as more Americans than
ever are now working from home. Now that the vaccine roll out is
kicking into high gear, can we expect any legislation to address
the safety issues of returning to work? Can employers mandate that
their employees get the COVID vaccine? I know a lot of these issues
are front and center in the minds of many. Any thoughts?

Joe Centeno:  We have experienced an
incredible transmigration of workers from offices or places of
work, who usually go to work, move to a place where they are
working from home, or unfortunately not having a job. Due to the
vaccines having COVID mitigated and perhaps subsequently herd
immunity, we expect to return to some normalcy at some point. You
might go to, perhaps, a hybrid – working in the office three
days a week and working from home two days a week out of the
five-day week. In this transition we are going to face a lot of
bumps. Employers are going to face a lot of challenges because
there are a lot of workers who really do not want to go back to an
office setting. First of all, maybe they are concerned about the
risks associated with taking a vaccine that had a quick FDA
approval. So, employers are going to have to handle all of these
issues and there will be a lot of them.

As for whether or not a vaccine can be made mandatory, the
answer is yes. Employers absolutely can mandate vaccines, but a
majority of them are not. Those that are looking to mandate
vaccines are primarily in the healthcare as well as the education
space and those in places where there is significant customer
facing of their employees or their workers with the public. A lot
of employers are not making the vaccine mandatory, and I think
there is some good reasons for that as well because some recent
studies have suggested that 30 to 40 percent of the population in
the United States is very suspicious and would not want to take the
vaccine. It would create a significant potential problem if you
mandate the vaccine and 30 percent were forced and said they were
not going to take it. That creates serious issues. It is also
challenging for employers to administer and keep track of. If you
have a significant number of employees, like a thousand employees,
can you think about having to collect the data on who has the
vaccine, whether you have the first shot or the second shot, who
has gone through the whole process, and who has not?

There are a lot of administrative processes in making the
vaccine mandatory. It also opens up potential claims under the
Americans With Disabilities Act. Although the vaccine itself is not
considered to be a medical inquiry or examination by the Equal
Employment Opportunity Commission, there are a lot of questions
around it that have to be asked that relate to existing medical
conditions and other risks that are medical questions that would
then have to be protected and kept confidential. And of course,
with the knowledge of a disability comes the claim of disability
discrimination. So, most are not making the vaccine mandatory
although they certainly can under the law.

We already have also seen government action with respect to the
workplace. President Biden through executive orders has already
asked OSHA to determine whether or not a new standard of safe
workplace in COVID needs to be created. So far OSHA has issued
guidance, which us just that – guidance. They are not
standards. I think we are going to see OSHA answer that
affirmatively, and we are going to see a new temporary standard
that employers need to meet to have a safe workspace.

Tim Costa:  Lastly, in California, the
recently passed Proposition 22 gives employers much more freedom,
so they can classify their workers in terms of employees versus
independent contractors. Can you explain what exactly this bill
did? Does it make its way to other states? Do you think we can
expect something similar at the federal level under President
Biden?

Joe Centeno:  Tim, this is the issue of
the gig economy. Proposition 22 was a reaction to the state
legislature’s passing of a bill into law that transformed most
independent contractors into employees. So, Proposition 22 was an
initiative that was supported by companies like Uber and Lyft
carving out as an exception to that California law to preserve the
status of independent contractors for workers that eventually
served as drivers and delivery service workers. They would remain
independent contractors on certain conditions. Those conditions
included that they would be paid at least 120% of minimum wage,
that they would receive certain health subsidies, and accident
insurance.

The question you asked, Tim, is that whether Proposition 22 is
going to make its way throughout the other 50 states or maybe come
from Washington D.C. It really remains to be seen. I think that
from a standpoint of how Proposition 22 is looked at, it is looked
at as something that passed California, but the bill by many is
viewed as not employee- or worker-friendly. I do not see that the
Biden administration is going to get behind this movement of Prop
22 from a federal level because of that. I think there are too many
perceptions and too many folks who have the view that the bill for
Uber, Lyft, and Amazon in California is a win for big business and
not a win for the small worker. I do not think from a
perception-basis the administration wants to be on that side of the
battle. Tim, you know this better than I. Though, in politics
perception is reality.

Tim Costa:  It is going to be one we are
going to watch closely here in D.C. as it certainly pits some
traditional allies against one another. Organized labor has been
very interested in these classification issues, so I can see
certain tensions mounting. The freedom that comes with the gig
economy is something that a lot of people value – both folks
who are working that industry as well as people who utilize the
services of it. So, it does not really lend itself to a top-down
National Labor Relations Board decision that would impact
industries like that around the country. We will keep an eye on it
here for sure.

Well Joe, we covered a lot here in a short amount of time. As
always there is plenty to talk about when it comes to labor and
employment as the world works its way back to normal after
COVID-19. Before we go, I just want to thank our listeners for
tuning into Insider Insights: 100 Days of Biden. To
hear the latest from Buchanan Ingersoll & Rooney attorneys and
government relations pros on what to expect under the Biden
administration, please subscribe to our podcast on Apple Podcast,
Spotify Podcasts, Google Podcasts or whatever you listen to. Until
next time, I am Tim Costa alongside my colleague at Buchanan, Joe
Centeno. Thanks for listening to Insider Insights: 100
Days of Biden.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.