Outlook for IEC Issues Under a
Biden Administration & Democrat Congress
Protecting the Right to Organize (PRO) Act
IEC’s #1 priority for the 117th Congress, this radical legislation would completely rewrite our nation’s labor laws. This disastrous bill passed the House last February and will likely receive serious consideration once again. IEC continues to actively oppose this legislation and recently held a webinar that covered its many troubling provisions and its prospects in 2021.
The Republican NLRB issued a rule in 2019 that enacted common sense changes to many of the ‘ambush’ elections provisions initially established under the Obama administration. A new NLRB would likely seek to restore all elements of the original rule put in place in 2015.
Both the NLRB and DOL finalized rules under the Trump administration that provided clarity as to what it means to be a joint employer, both of which IEC supported. Under a Democratic administration, both will likely be rescinded, with the NLRB likely to revert to the uncertainty established under the 2015 Browning-Ferris Industries (BFI) standard established under the President Obama.
Finalized earlier this month, the Trump administration issued and independent contractor regulation that IEC supported. It’s likely that the Biden administration may propose its own rule that would reverse the one issued under President Trump and support provisions that make it more difficult to be considered an independent contractor.
The Trump administration finalized its overtime rule IEC supported in 2019 with a modest increase to the threshold for overtime. The Biden administration may seek to follow the proposal issued under President Obama, which IEC opposed, that would have nearly doubled the threshold in place at the time if not for a federal judge that ultimately blocked the rule.
House Democrats passed legislation last year that would reauthorize the National Apprenticeship Act and have already introduced a bill to reauthorize the NAA in the 117th Congress. While the legislation significantly increased funding for registered apprenticeship, IEC opposed the bill due to it limiting merit shop access to some of the grants proposed in the bill.
As the country continues to recover from the economic downturn due to the pandemic, it’s possible Congress will seek to implement policies that help those seeking to develop new, much needed skills. Proposals such the Jumpstart Our Businesses by Supporting Students (JOBS) Act, which would make Pell funding available to students enrolled in short community college job training programs that lead to industry-recognized credentials and in-demand jobs, may receive additional bipartisan support.
The new Congress may consider permanent and more sweeping paid leave legislation. A few factors have led to this to include: the increasing patchwork of state and local paid leave law requirements, the new paid family leave benefit for federal government employees beginning in 2021, and the paid family and sick leave provisions of the Families First Coronavirus Response Act (FFCRA).
Secretary of Labor
President Biden nominated current Boston mayor Martin Walsh to be U.S. Secretary of Labor. Walsh is a former union president and state representative before becoming mayor. With his nomination, the Department of Labor could place greater emphasis on apprenticeship and workplace safety.
Occupational Safety and Health Administration (OSHA)
On his first full day in office, President Biden signed an Executive Order on Protecting Worker Health and Safety that directs OSHA to consider the need for a COVID-19–specific Emergency Temporary Standard. If such a standard is deemed necessary, it is to be issued by March 15, 2021. In an amicus brief last year, IEC opposed union efforts to have a court coerce OSHA to issue such a standard. In addition, an OSHA under a Democratic administration will likely seek to place a greater emphasis on enforcement over compliance assistance.
By all accounts, a comprehensive infrastructure bill is long overdue and is likely one of the issues that could garner broad bipartisan support. IEC generally supports Congress passing infrastructure legislation. Last summer, House Democrats passed an infrastructure bill that IEC opposed due to provisions that discriminate against the merit shop, to include project labor agreements (PLAs) and expanded Davis-Bacon prevailing wage requirements. It’s likely that any infrastructure bill introduced in the 117th Congress will also include similar policies.
It’s unclear whether Democrats will want to move on tax reform any time soon as the economy continues to recover from the government-imposed shutdowns during the pandemic. Regardless, proposed changes to the tax code under a Biden administration and Democrat Congress could mean a tax increase for most IEC members. Below are a few notable proposals.
• Phase-out the pass-through deduction (Section 199A).
• Taxing capital gains as ordinary income for taxpayers with over $1 million in income.
• Return to 2009 law for the death tax ($3.5 million exemption and 45% rate vs. $11.7 exemption for individuals/$23.4 million for couples in 2021 and 40% rate).