How Biden’s pledge to be the ‘most pro-union’ US president has affected HR

President Joe Biden seems to have spent the past two years cramming more into his days than the influencers who document their early-morning routines. (#RiseandGrind!)

Biden has introduced so many labor changes in the first half of his term that even David Madland, senior fellow at the Center for American Progress, whose job it is to track Biden’s labor agenda, has a “hard time keeping up.”

Biden began his term by nominating or appointing pro-union leaders to agencies including Secretary of Labor Marty Walsh and NLRB General Counsel Jennifer Abruzzo. Since then, the Brookings Institute reports, the president and his team have attempted six major labor regulatory actions, while OSHA has proposed new standards related to workplace health and safety, and Congress has upped funding for the EEOC.

As Madland said, it’s a lot to keep track of. Public policy experts from the Economic Policy Institute (EPI), American Center for Progress, and the Brookings Institute talked to HR Brew about the most notable labor updates and how they have reshaped the employee–employer (and employee–HR) relationship so far.

Protecting workers’ health and safety during Covid-19. OSHA introduced two emergency temporary standards (ETS) related to Covid-19: The first required workers in healthcare settings to mask up, among other things, while the second required vaccination or testing for large private organizations. (The second was struck down.)

Though the private sector initiative was, as Margaret Poydock, policy analyst at EPI, put it, ultimately “abandoned,” many HR departments created policies based on OSHA’s proposed guidance—and kept them in place. Jim Paretti, attorney at Littler Mendelson, told HR Brew that many of his clients wanted to require vaccination or testing but feared backlash. The proposed ETS, in November, 2021, empowered HR to do so without taking heat, said Paretti.

More money to workers. President Biden took executive action to raise the minimum wage for federal contractors from $10.95 to $15 and for tipped workers from $7.65 to $10.50—the first such raise, Sanjay Patnaik, the director of Brookings Institute’s Center on Regulation and Markets, told us, since 2009. The executive action also gave the secretary of labor, as of 2023, the power to set the minimum wage for all federal contractors—from office workers to national park concessions vendors.

These changes could have ripple effects in the private sector, potentially impacting the salaries HR offers new hires. As Poydock explained, “If the federal government is raising their wage to a certain amount [then] other businesses have…got to raise [to] that amount too, to attract workers.”

Revisiting the test for independent contractors. This fall, the DOL proposed a change to a Trump-era questionnaire would affect how workers are classified as independent contractors or employees. When determining a worker’s classification, the government would have to consider whether they are integral to a company’s business, what investments they make to do their jobs, and how much control they have over their hours and responsibilities.

The new rule could result in many of the 57.3 million gig workers in America being reclassified as W-2 employees.

“The job of HR [would be] geometrically increased,” Paretti said. If contractors become employees, “You may need to track the hours that they’re working [and] extend certain benefits of employment that you otherwise wouldn’t extend.”

Power to the people. Though this week President Biden is taking heat for trying to prevent US rail unions from striking, much of his labor agenda has lived up to his pro-union promises. The NLRB has suggested updates to protect workers’ right to organize, including banning captive audience meetings. Congress has limited the use of NDAs and forced arbitration for matters related to sexual harassment complaints and introduced similar legislation to reduce the use of non-compete agreements for hourly workers. Even positive changes could mean HR having to relearn or reconsider strategies on issues like union engagement, harassment investigation procedures, and hiring policies.

What’s next? Though Madland agreed with Biden’s self-assessment that he is one of the most pro-labor US presidents in decades, experts told us it may be difficult for him to continue advancing his labor agenda now that control of Congress is split. But, as Poydock said, “there’s still two more years” to advance policy via executive action.

Poydock is eyeing a federal minimum wage increase for all workers, which would impact HR’s salary budgets. Paretti said HR should watch how the government considers AI and algorithmic intelligence in hiring. All of the experts we spoke to are watching the Protecting the Right to Organize Act that’s currently stalled in the Senate and could potentially require HR to update many of its practices around unionization.

Whether Biden advances new initiatives or continues to advance existing proposals, Paretti expects an eventful next two years that could shake up HR practices and policies.

“We’re standing on the shore, watching a very big wave about to crash,” Paretti said. “It is cresting, but I expect in the early part [or] the middle part of next year, that that’s going to make landfall.”—SV

Do you work in HR or have information about your HR department we should know? Email [email protected] or DM @SusannaVogel1 on Twitter. For completely confidential conversations, ask Susanna for her number on Signal.