Biden Expected to Advance Priorities Via Executive Action & Regulations

With a divided Congress, it is a safe bet that President-elect Biden will quickly and aggressively issue executive orders to revoke President Trump's orders and prioritize his policy objectives, notably in the realm of immigration. The Biden Administration is also expected to rapidly begin crafting regulatory changes for implementation through executive branch agencies.

A critical regulatory battleground will be on policies from the U.S. Department of Labor (DOL) under Biden. DOL will likely prioritize a COVID-19-specific workplace safety emergency temporary standard for as long as the pandemic continues. There will also be a significant uptick in enforcement, specifically on workplace safety and COVID-19–related complaints. Additionally, the DOL's Wage and Hour Division will likely implement a "repeal and replace" agenda concerning regulations addressing overtime, joint employment, and independent contractor status.

At the National Labor Relations Board (NLRB), Republicans will maintain a majority into the summer of 2021. However, once Democrats gain a majority, they are expected to roll back current Board policies and return to policies that favor organized labor. This could mean rescinding the NLRB's joint-employer regulation and election procedure changes, as well as reversing many of the Board's decisions (employer property rights, employee discipline, fractured bargaining units, etc.).

Of note, the agencies will need to proceed somewhat judiciously on the regulatory rulemaking front under Biden. The current federal judicial system has been stocked full of reliably conservative judges in recent years. New regulations could be at risk of being thrown out in court on the grounds of government over-reach.

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