On January 20, millions of Americans rejoiced as our new President and Vice President were sworn in. Women and girls wore Chucks and pearls to honor Kamala Harris and to celebrate her many firsts as Vice President—first woman, first Black American, and first of South Asian descent. We shed tears of joy, heaved sighs of relief, and felt hope for a better tomorrow.
President Biden delivered a powerful message of hope, unity, healing, and rebuilding. He promised an administration that would dedicate itself to fighting the pandemic, delivering jobs, addressing growing inequality, rebuilding the middle class, securing healthcare, seeking racial justice, returning to truth and transparency, and fighting hatred and divisions.
National Youth Poet Laureate Amanda Gorman captured the moment with her breathtaking poem, The Hill We Climb, which ended:
The new dawn blooms as we free it
For there is always light,
if only we’re brave enough to see it
If only we’re brave enough to be it
After the inauguration, the President got to work, signing 15 executive orders on his first day in office. More have followed. Already, we see that this new administration, with the backing of the Senate and the House of Representatives, will implement sweeping changes to benefit workers throughout the country.
Here are some of the changes we can expect:
1. A commitment to racial justice, diversity, equity, and inclusion
President Biden’s victory can be attributed in large part to the strong support he has from the Black community (indeed, his decisive win in the South Carolina Democratic primary helped revive his campaign and propelled him to secure the nomination). The President’s strong commitment to racial equity has reverberated throughout his campaign, and he mentioned racism and racial justice five times in his inaugural address.
The administration is placing racial equity front and center among its immediate priorities:
The promise of our nation is that every American has an equal chance to get ahead, yet persistent systemic racism and barriers to opportunity have denied this promise for so many. President Biden is putting equity at the center of the agenda with a whole of government approach to embed racial justice across Federal agencies, policies, and programs.
Indeed, one of the first executive orders the President signed was an Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. This executive order tasks agencies with exploring whether their programs and policies perpetuate systemic barriers, directs the allocation of resources to advancing fairness and opportunity, and seeks to obtain data to measure and advance equity. In addition, it revokes the prior executive order that prohibited diversity training. With this mandate, and with Charlotte Burrows at the helm of the EEOC, we can expect significant change at the federal level.
2. Protections against discrimination on the basis of gender identity and sexual orientation
California’s Fair Employment and Housing Act explicitly prohibits an employer from discriminating based on sex, sexual orientation, gender, gender identity, or gender expression. In contrast, the federal law, Title VII of the Civil Rights Act of 1964, protects against discrimination because of sex, but is silent as to sexual orientation, gender identity, and gender expression. Over the past two decades, legislators have repeatedly introduced but failed to pass federal legislation seeking to prohibit discrimination based on sexual orientation and (later) gender identity—the Employment Non-Discrimination Act.
Until the Supreme Court definitively resolved the issue last year in Bostock v. Clayton County, 590 U.S. ___ (2020), federal courts had been split as to whether the prohibition against sex discrimination provided protection against sexual orientation and gender identity discrimination. In a historic 6-3 decision, the Supreme Court held that Title VII’s prohibition on discrimination “because of sex” covers discrimination based on sexual orientation and gender identity. The court declared: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
On January 20, President Biden signed an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. It affirms that every person should be treated with respect and dignity, and should receive equal treatment under the law, no matter their gender identity or sexual orientation. The Executive Order makes clear that Bostock’s reasoning applies to all other laws that prohibit sex discrimination and their implementing regulations, that the administration will commit its resources to combating discrimination on these bases, and that it will address overlapping forms of discrimination.
3. Protections against mandatory arbitration
Arbitration stacks the deck against employees. Employees are less likely to win their employment cases in arbitration, and when they do their awards are lower on average. When arbitrators get repeat business from employers and their counsel, those employers tend to receive more favorable outcomes. State legislatures have sought to limit arbitration abuse, but the U.S. Supreme Court has taken the position that the Federal Arbitration Act (“FAA”) preempts state laws that limit arbitration.
With Democratic control of the Senate and the House of Representatives, there is hope for passage of a bill that will end employers’ ability to force employees to arbitrate their claims. As previously introduced, the “Forced Arbitration Injustice Repeal Act” or the “FAIR Act” would seek to:
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- prohibit predispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes; and
- prohibit agreements and practices that interfere with the right of individuals, workers, and small businesses to participate in a joint, class, or collective action related to an employment, consumer, antitrust, or civil rights dispute.
4. A greater focus on worker health and safety
As the pandemic has raged, healthcare workers and essential workers have risked their lives to care for and serve others. On January 21, the President issued an Executive Order on Protecting Worker Health and Safety. It focuses on reducing the risks that workers face during the pandemic, including by issuing guidance to employers on workplace safety under the Occupational Safety and Health Act (OSHA) (including with respect to masks), enforcing OSHA’s health and safety obligations, coordinating with State and local governments, and committing further resources to protecting workers. A second Executive Order protects federal workers and mandates mask-wearing, physical distancing, and other measures by on-duty or on-site federal employees, by on-side federal contractors, and all persons in federal buildings or on federal land.
5. An expansion of national paid leave
The United States is one of the few developed nations that does not provide workers with paid parental and medical leave. The Families First Coronavirus Response Act (FFCRA) showed that the passage of a federal paid leave law was possible. It provided (before its expiration) job-protected paid leave to employees: (1) for their own COVID-19 related sickness or time off from work; (2) to care for a covered family member who was sick or under quarantine; and (3) to care for a child whose school or child care provider was closed due to the pandemic. We can expect further legislation seeking to provide additional paid leave to workers.
6. Greater union protections
Biden promised to be “the most pro-union president you’ve ever seen.” One of his first actions in office was to terminate the National Labor Relations Board’s (NLRB) general counsel and his deputy, as both were seen as hostile to employee rights and to unions. The NLRB protects the rights of private employees to organize, engage in collective bargaining, and engage in protected concerted activity. It also prevents and remedies unfair labor practices by employers and unions. With a forthcoming Biden appointee at the helm of the NLRB, the agency will surely reverse the course that it has been on over the past four years, providing greater protections to workers and unions.
7. An increase in the federal minimum wage
The federal minimum wage has remained stagnant at $7.25 an hour minimum wage since 2009. As of January 2020, 29 states and D.C. have a higher minimum wage (including California). President Biden has voiced his support for increasing the federal minimum wage to $15 an hour. His Executive Order on Protecting the Federal Workforce directs the Office of Personnel Management to make recommendations to promote a $15/hour minimum wage for federal employees. Legislation to increase the federal minimum wage for all covered workers will surely follow.
8. A comprehensive rescue plan for economic relief
The pandemic has had a devastating impact on unemployment. I have written before about how the pandemic has done so in a manner that disproportionately affects certain groups of workers—those working in hard-hit industries, who are disproportionately low earners, women, and workers of color; those with disabilities; older workers; and parents with young children. The President has committed to a comprehensive rescue plan to help workers and businesses. Among other things, we can expect the following: (1) an extension of unemployment benefits; (2) unemployment coverage for those who turned down jobs because of health concerns; (3) an extension of the FFCRA or a modified version of it; (4) increased food assistance; (5) rental assistance; (6) extending restrictions on evictions and foreclosures; (7) additional federal funding for workers; (8) financial support for access to affordable childcare; (9) support for greater access to healthcare.
Conclusion
We are living in a time of change, of hope, of rebuilding. With the new administration’s shift in policies and priorities, workers can look forward to greater protections and a focus on health, equity, and fairness.
