Elections have consequences, President Obama famously said, and boy, do they ever. One you can count on is that the new Biden Administration will work to turn the clock back to Obama-era policies.
Donald Trump ran for President in 2016 promising that for every new rule his administration created, two would be eliminated, but explicitly excluded those dealing with safety and security from that draconian formula. However, changes in safety regulation and enforcement policy were made under Trump.
Before the 2020 election, Joe Biden’s staff put together a list of Trump’s Executive Orders they said will be reversed by the new administration as quickly as possible. These range from major actions to symbolic declarations. For example, the “2 for 1” order concerning ending two rules for every new one will be among the first to go.
Biden already has said he will issue orders changing how the government addresses the Covid 19 pandemic and will reverse Trump environmental orders. He has said these also will include a nationwide mask mandate and lockdown guidance.
Other targets for elimination include restrictions on immigration, stronger work requirements for welfare programs, protections for religious beliefs regarding Gay rights, and elimination of what were seen under Trump as racially-biased diversity training for federal contractors and employees.
A major thrust of the Trump agenda was stricter enforcement of immigration laws, and under President Biden you can expect that effort to be dialed down considerably.
Work on the border wall is sure to halt, Obama’s “Dreamers” program will no longer come under legal assault ,and intensive campaigns involving immigration personnel raiding worksites can be expected to end, although enforcement may not be totally abandoned.
Even if immigration enforcement doesn’t end completely, the U.S. Immigration and Customs Enforcement agency may be eliminated and recast as something else, given the passionate hatred and contempt in which it is held by some in the Democrat party.
Biden promised to find a way to bestow legal status on illegal aliens already in this country, which he optimistically estimated to number only 11 million people. As soon as the election was over, reports surfaced about immigrant caravans from Central America heading through Mexico to our border.
Embracing Obama-Era Policies
Don’t expect a lot of change in stated policy right away at the National Labor Relations Board, Surface Transportation Board and Equal
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Employment Opportunity Commission, as well as the Federal Trade Commission and Federal Communications Commission.
These organizations were created by Congress to be independent of administration direct control. They are run by both Republican and Democrat appointed commissioners who serve set, multi-year terms. However, as individual terms expire, Biden will designate new members and chairs who will have considerable influence over directing policy.
The Biden campaign promise to labor was ambitious, stating boldly that it will “Check the abuse of corporate power over labor and hold corporate executives personally accountable for violations of labor laws.”
During the campaign, Biden also promised to “encourage and incentivize unionization and collective bargaining; and ensure that workers are treated with dignity and receive the pay, benefits and workplace protections they deserve.”
If past is prologue, NLRB eventually will become very union friendly, deciding to impose fewer restrictions on how union representation elections are held, and expand definitions of worker behavior that is cast as protected activity.
Get ready for “ambush” election rules and perhaps even some form of card check as unions are allowed to eventually reassert their power over the board.
Both the NLRB and the Department of Labor will reverse course on the definition of joint employer status and in regard to how their rules define independent contractors.
Last February, the Democrat-dominated House of Representatives passed the Protecting the Right to Organize Act, legislation that garnered Biden’s express support during the campaign.
This bill is an attempt to apply California’s AB 5 anti-independent contractor law nationwide. It may continue to be blocked by the Senate but expect Biden to pursue it as both a guide for administrative action and as a legislative goal.
The name of that bill tells you everything you need to know about the motivation behind it. Unions can’t legally organize independent contractors and have vigorously pursued changing their status in the courts and state legislatures for many years.
During the Obama administration, the then chief of the DOL Wage and Hour Division declared that there are no such things as independent contractors, only misclassified employees – a view that was later parroted word for word by Hillary Clinton during her 2016 presidential campaign.
There also is a good chance that DOL will reopen the overtime regulations adopted under Trump to make it more difficult for employers to claim some workers are exempt from those rules.
A Changing Safety Focus
When it comes to safety policy, don’t be surprised if the Federal Motor Carrier Safety Administration reopens the seemingly never-ending hours of service rulemaking for commercial drivers in order to reverse changes made under Trump that were opposed by the Teamsters and public safety groups.
Changes at the Occupational Safety and Health Administration will surely include the adoption of a Covid 19 emergency temporary standard that had been sought unsuccessfully by labor unions, led by a militant AFL-CIO.
It‘s easy to anticipate that OSHA will get much tougher on employers. Under Trump, enforcement activities were pursued, but so were programs emphasizing collaborative efforts and educating employers about maintaining safe operations.
During the Biden presidency, expect to see a return the Obama-era OSHA’s emphasis on the “public shaming” of employers who are found to be in violation of its regulations.
Non-controversial actions, like the potential changes in lift truck standards designed to deal with changes in technology, most likely won’t be affected by the change in administration.
Biden also was explicit about reversing course when it comes to environmental regulation. Expect fuel standards to become more strict and emissions standards to tighten as the new administration embraces policies aimed at reducing the extent and impact of global climate change.
The upshot is that warehouse operators and other employers will need to adjust to the new reality while exerting as much influence as possible on the new regime to ameliorate the potential severity and harm that the new regulatory scheme threatens.