As we near the end of President Biden’s first 100 days in office, there have already been a number of policy changes that impact employees, including the extension of unemployment benefits under the recent $1.9 trillion stimulus package and the proposed withdrawal of the previous administration’s rule broadening the definition of independent contractors under the Fair Labor Standards Act. In the coming months and years, expect to see more changes that may have an impact on the employer—employee relationship. These changes would benefit employees and provide increased protections from discrimination in employment.
Increased Protections against Discrimination for Women and LGBTQ+ Employees
On President Biden’s first day in office, he signed Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity and Sexual Orientation. This executive order applies to executive and independent agencies at the federal level and extends the protections of the landmark case of Bostock v. Clayton County, a 2020 United Supreme Court decision, to other federal laws prohibiting discrimination. Bostock held that Title VII’s prohibition on sex discrimination in employment encompassed a prohibition against discrimination based on sexual orientation and gender identity. The Biden administration also supports the Equality Act, which passed the House of Representatives in February but has not become law. The Equality Act codifies the Bostock decision, expands protections for pregnant individuals, and prohibits discrimination based on sex stereotypes and sex characteristics.
Additionally, the Biden administration supports the Pregnant Workers Fairness Act (PWFA). The PWFA would newly require certain private and public employers to provide reasonable accommodations for pregnant employees and job applicants.
The Biden administration has expressed support for the Paycheck Fairness Act (PFA), which narrows the acceptable justifications for pay disparities between men and women. Under current law, employers may justify a wage disparity on a catch-all provision of “any other basis other than sex.” The PFA would eliminate this catch-all provision and instead require employers to establish that pay differentials are based on a bona fide factor other than sex, such as education, training, or experience. The PFA would also prevent employers from prohibiting their employees from discussing their wages with each other and from seeking salary history as a means of establishing starting salary.
Restrictions on Forced Arbitration, Non-Competes, and No-Poaching Agreements
The Biden administration supports restrictions on pre-employment forced arbitration clauses, non-compete provisions, and no-poaching agreements. Specifically, the Forced Arbitration Injustice Repeal (FAIR) Act would require employers to permit employees and prospective employees to opt out of any arbitration agreements. It would also invalidate existing arbitration agreements for claims that arise after the enactment of the FAIR Act.
Employees should also expect the Biden administration to target non-compete clauses in employment agreements and no-poaching agreements. No-poaching agreements are entered into between competitor employers, and they serve to suppress wages of employees. They are especially common among employers of physicians. The Biden administration has stated that it intends to impose severe restrictions on non-compete agreements and a complete ban of no-poaching agreements.
While not all of these bills are likely to become law, the stated policies of the Biden administration will be reflected in administrative actions and should encourage employers to revise their practices. If you have any questions about how these changes might affect your employment, please contact one of our experienced employment law attorneys.