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President-Elect Biden Prepares Immediate Executive Orders

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. 

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Best Chances for Policy Compromise

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. 

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How President-Elect Biden and the Likely Senate Republican Majority Affect Policy-Making

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. 

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Consequences of Election Results (Updated)

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.  

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Administration Attempts to Maintain GOP Majority at NLRB and EEOC Regardless of Election Results

Republicans have done their best to maintain their majority at the Equal Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) regardless of November's election results.  In September, two Republicans and one Democrat were confirmed to the EEOC in separate votes.  Confirmation of the three new Commissioners provides the EEOC with its first full complement of Commissioners during the Trump Administration.  The confirmation of the three new Commissioners give the Republicans three members on the five-seat Board until at least July 2022.

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Keeping Politics Out of the Workplace is Difficult

As the election approaches, employees are taking an increasing interest in political issues.  Corporate America traditionally has avoided speaking out on political issues, but now it is becoming more common to do so.  Indeed, some surveys indicate that a majority of employees expect and want their employers to speak out on social and political issues. 

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Department of Labor Propose Independent Contractor Rule that Would Benefit Business

Many businesses adopt an independent contractor method of utilizing workers, including the construction industry, portions of the trucking industry, franchisors, and most of the Gig economy.  Since the employment laws, minimum wage and overtime rules, various forms of legal liability, are generally not applicable to independent contractor relationships, civil rights and plaintiffs' groups argue for a broader application of the employment laws.  A few states such as California, Massachusetts, New Jersey, and Connecticut have enacted state laws making independent contractor relationships very difficult to maintain. 

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Uber and Others Threaten to Leave California Over Independent Contractor Rules

Uber and Lyft threatened to suspend their passenger operations in California in late August over a new California law that requires companies to treat workers as employees rather than independent contractors if they contribute to the usual course of business.  Uber and Lyft, both based in California, who have large operations in that state, argue that drivers themselves would suffer over less flexibility, and the law would vastly reduce their work time. 

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wooden restrooms sign

Supplying "Sex Neutral" Bathroom Insufficient

The U.S. Court of Appeals for the Fourth Circuit has joined the Eleventh Circuit in ruling that prohibiting a transgender student's ability to use bathrooms that match his gender identity violate Title IX and equal protection under the U.S. Constitution.  Grimm v. Gloucester Cty. Sch. Bd., No. 19-01952 (4th Cir., 8/26/20).  The U.S. Supreme Court ruled earlier this year for LGBTQ protections in the workplace, and later the Eleventh Circuit supported a high school student who challenged the transgender bathroom ban. 

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Employer Confronted with Worker "Taking A Knee"

The controversial subject of professional football players "taking a knee" during the National Anthem has now expanded to the workplace.  In a recent case, an employer was confronted with an African-American employee protesting his employer's alleged racial mistreatment by taking a knee during a meeting.  A supervisor asked the plaintiff to step into his office following the kneeling incident.  The discussion in the supervisor's office "escalated" when the supervisor issued the plaintiff an  "official discussion," and the supervisor felt threatened and asked the plaintiff to leave, and local police were called when the plaintiff refused to leave.  The plaintiff was placed on leave without pay pending an investigation.

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