There are a significant number of pending federal regulatory rules that the Administration may try to issue before President Trump leaves office on January 20, 2021. Among the most important is the final rule to make it easier for employers to classify workers as independent contractors rather than employees who are owed minimum wages and overtime pay.

For many years, the U.S. Department of Labor (DOL) has allowed employers to seek official government opinions on various fact situations in determining legal compliance, such as under the Wage/Hour laws. The right to seek advance government opinions on such issues was suspended during the Obama Administration, but reinstated during the Trump Administration. In December of 2020, the Equal Employment Opportunity Commission (EEOC) announced that the public can now seek its official position on potentially unclear aspects of federal civil rights laws, which can provide a defense to alleged violations. 

For undocumented immigrants who came to the U.S. as children ("Dreamers"), a new court decision grants a temporary reprieve from deportation. Recently, a federal district court in New York ordered the Trump administration to reinstate the Deferred Action for Childhood Arrivals(DACA) program—an Obama-era initiative that has allowed around 646,000 immigrants to stay in the country and work legally as long as they meet certain eligibility conditions. Batalla Vidal v. Wolf, Civil Action No. 16-CV-4756 (E.D.N.Y. Dec. 4, 2020). An estimated 685,000 additional people may be able to apply for DACA under the new ruling. A DHS spokesperson said the agency will appeal the ruling. 

Early reports indicate that most employers are more likely to use pharmacies and other third-party providers to administer the COVID vaccination. The vaccines from Pfizer require below-zero temperatures, and there are difficulties in keeping up with who got the first of the two shots required and when those workers need their second dose.

Thus, many employers will encourage employees to go to CVS, Walgreens, and other distributors that regularly handle such vaccinations. Further, employers could assist in the process by offering work-sponsored vouchers or on-line scheduling programs, as well as providing time off to get the shots.

This is part of our January 2021 Newsletter.

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Employers want to provide safe work places, and it is to the advantage of both the employer and employees to have a COVID-vaccinated workforce. Thus, the natural question is can I, and should I, require mandatory COVID vaccinations for my employees? 

Mr. Biden has stated he intends to be the most "pro-union President ever."  However, the process is going to be slow at the NLRB since Republicans currently enjoy a 3-1 majority, and the first Republican seat to expire will occur in August 2021.  The next Republican seat does not become vacant until 2022, and so the Republicans will still have a majority at the NLRB through 2021 unless someone leaves.

President Trump issued 196 Executive Orders through late October and Obama issued 295.  Many of Trump's Executive Orders attempted to limit regulation, however, rather than expand it.  Mr. Biden reportedly plans to issue numerous Executive Orders on his very first day in office, January 20, 2021. 

The first and most obvious area of compromise involves dealing with the pandemic.  Both parties support additional pandemic relief, including stimulus spending.  Republicans want less than $1 trillion, while Democrats want more than $2 trillion.  Controversial portions of any compromise include Republican demands for some protection for business from pandemic claims, while Democrats want more aid for state and local governments. 

President-Elect Biden not only is considered the most moderate of all the Democratic candidates for President, but he has a history of deal-making, including deals with Senate Majority Leader Mitch McConnell, that suggests compromise may be possible.  The new Democratic senators in States that flipped, Colorado and Arizona, ran as Centrist Democrats, who touted their desire to work across the aisle. 

We have previously published an Alert entitled "Report on Election Results, Analysis, and Consequences," but this newsletter is updated and includes more emphasis on the consequences of the election as to policy and legislation.  President-Elect Biden will very likely try to assume a role as a "deal-maker," and he has a history of working with Senate Majority Leader Mitch McConnell and may be more pragmatic than his more liberal Democratic supporters.