Biden and Employment Law

Monday, November 16, 2020

Suzanne Lucas has a short piece at Inc. that speculates on "What a Biden Presidency Will Mean for Your Workplace." Lucas ticks off five areas, whose likelihoods depend in various degrees and ways on whether Congress is divided after the senatorial runoffs in Georgia. The first two stand out to me for different reasons.

First, Lucas claims that Critical Race Theory will be quickly reinstated in federal workplaces:

Marchers who like high prices for labor and think it's okay to force others to pay them. (Image by The All-Nite Images, via Wikipedia, license.)
While Trump never mentioned the term "critical race theory" in his recent executive order regarding diversity training for federal employees and contractors, it was a clear removal of this controversial method of talking about diversity, in which existing institutions are racist and White people maintain power at the expense of people of color. This will probably be one of the first things undone by Biden when he takes office in January. But expect to see lawsuits as many people, including U.S. Civil Rights Commissioner Peter Kirsanow, say that critical race theory training violates Title VII of the Civil Rights Code. [bold added, links removed]
Since this was a fairly recent executive order, lots of us probably saw that coming from a mile away. Barring court-packing, the lawsuits stand to be a good thing, given the current composition of the Supreme Court.

I am less optimistic about the second item. I regard a $15 minimum wage as a near-certainty after this election, even with a divided Congress. Why? First, the minimum wage has been around for so long that most people cannot conceive of repealing it, despite the fact that it causes unemployment by driving up business costs, resulting in fewer hires or business closures. Second, the Senate will be close regardless. All it would take is a few Republican senators who favor this -- or think their constituents do. On that second score, consider, for example, that both of Florida's senators are Republicans, and yet the state just passed a $15 minimum wage via ballot initiative, as Lucas notes.

Lucas does not mention the prospect of Biden trying to pass a nationwide version of California's recently-neutered, job-killer, the AB-5 contracting ban. Biden supports doing that, and I wouldn't put it past him to try, if he ends up with both houses of Congress on his side.

-- CAV

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