The 2020 Presidential Election and What’s in Store for Higher Ed HR

Winter 2020-21
Josh Ulman and Basil Thomson

After a contentious election, Vice President Biden is now President-Elect Biden. The House of Representatives will continue to be controlled by the Democrats; however, their majority is significantly diminished. At the time this article was written, they had clinched 222 seats, with Republicans taking 211. In the Senate, control came down to the outcome of two runoff races in Georgia that took place on January 5. Democrats won both races in Georgia, positioning Vice President-Elect Harris to provide the tie-breaking vote and hand Democrats control of the chamber.

While pollsters and pundits had forecast that a President-Elect Biden would enter the White House with a significant mandate, buoyed by Democrats broadening their majority in the House of Representatives and flipping the Senate, the reality is that Americans remain divided and President-Elect Biden will have a much more difficult time pushing through the robust legislative-reform agenda he campaigned on. That said, his administration will wield an immense amount of executive power that they will be able to use to fulfill many aspects of their campaign agenda. Here, we focus on likely changes to employment policy that will be top of mind for higher ed HR.

Executive Actions

Given the congressional gridlock that President-Elect Biden is likely to inherit, we expect to see Biden use “pen and paper” to enact a significant portion of his policy agenda. Much like former presidents who have done the same, we can expect that he will rescind on day one many of the executive orders that have been issued during the Trump administration. A large part of the Biden administration’s initial actions will likely be to unwind Trump’s dizzying web of executive actions relating to immigration. The Deferred Action for Childhood Arrivals (DACA) program, which has allowed undocumented immigrants brought to the country as children to live, work and study in the United States, was reinstated in December following a District Court order. If the Trump administration tries to administratively terminate DACA, a Biden administration has made clear the program’s protection is a day one priority. It is also expected that the Trump administration’s 2017 travel ban, Executive Order 13780, on nationals from some Muslim-majority countries will be repealed.

In the workforce space, Biden is expected to revoke President Trump’s September 22 Executive Order (EO) on “Combating Race and Sex Stereotyping.” The EO imposed new requirements on federal contractors, including colleges and universities, with respect to the content of workplace training programs. Biden may also go on the offensive in this area and issue an executive order that requires bias training programs for federal contractors to address discrimination on the basis of race, sex, sexual orientation, gender identity and expression, and disability. Additionally, Biden may attempt to restore and build on the Obama administration’s Fair Pay and Safe Workplaces Executive Order, which conditioned federal contracts on the company’s record of compliance with federal, state and local labor and employment laws.

While this is just the tip of the iceberg, keep in mind that administrative actions do not happen instantaneously. The Executive Branch faces various obstacles to implementing policy changes, including the transition of personnel and the confirmation process for political appointments, the regulatory process itself, and possible legal challenges to the administration’s policy changes. The anticipated unwinding of the Trump administration’s agenda will take time and will have to be reasonably balanced with other issues that will likely take priority, such as the economic and health response to COVID-19.

The anticipated unwinding of the Trump administration’s agenda will take time and will have to be reasonably balanced with other issues that will likely take priority, such as the economic and health response to COVID-19.

U.S. Department of Labor

Over the past couple weeks, President-Elect Joe Biden has announced several members of his transition team. The transition team for the Department of Labor (DOL) is composed of 24 members from various backgrounds, including academia, the federal government, left-leaning think tanks, and labor organizations. Expect Biden to appoint some familiar faces to the DOL so the agency hits the ground running and can carry out an aggressive agenda from the start.

Initially, it is expected that Biden will focus efforts on revoking or stopping Trump-era regulations that have been finalized or are close to being finalized when he takes office. The Trump-era Independent Contractor Rule under the Fair Labor Standards Act (FLSA) and the Trump-era Joint Employer Rule under the FLSA are likely to be priorities in the first 100 days. It is also widely expected that the Occupational Safety and Health Administration (OSHA) would be directed to issue an Emergency Temporary Standard for workplace safety procedures related to COVID-19.

The DOL will also revise existing guidance under the FLSA on independent contractors and joint employment and it would not be surprising to see the DOL’s Wage and Hour Division opinion letters get the axe. The opinion letter process, which had been a longstanding practice of the DOL, was eliminated during the Obama administration and replaced with broader “Administrator Interpretations” — a Biden DOL could do the same.

A Biden DOL will also look to revive Obama-era regulations like the Persuader Rule and the Obama-era Overtime Final Rule, which doubled the minimum salary threshold (used to determine if an employee is exempt from overtime protections) and indexed the threshold to inflation. However, these will not be addressed until later in the presidency and could be complicated given lawsuits that struck down both rules.

 

U.S. Department of Education

At the Education Department, while it will likely take some time, we expect a Biden administration to work on rescinding and reforming the Trump administration’s final rule that changes how colleges and universities must handle allegations of sexual assault and harassment under Title IX of the Education Amendments of 1972. The final rule, which is currently subject to lawsuits, went into effect on August 14, 2020, despite requests from plaintiffs that the rule be delayed while it continues to be challenged in court.

National Labor Relations Board (NLRB) and Equal Employment Opportunity Commission (EEOC)

Presidents face additional challenges in implementing policy through independent agencies. For example, with respect to the actions of the NLRB and EEOC, a Biden-Harris administration can only implement changes after it secures a majority on those boards. As far as the NLRB is concerned, the earliest a Biden-Harris administration could secure a majority in the absence of someone leaving the board before their term is up is on August 28, 2021. In addition, the NLRB’s general counsel largely controls the board’s litigation positions and what cases to bring before the NLRB. Republican General Counsel Peter Robb is serving a term that expires in August of 2021. Note, however, the NLRB chair, who is designated by the president, has significant authority over case management and can determine to some extent the timing of issues that come before the board.

With respect to the EEOC, the earliest a Biden-Harris administration could obtain a majority on the commission in the absence of someone leaving before their term is up would be in July of 2022, when Chair Janet Dhillon’s (R) term expires. In addition, the agency’s litigation activities are controlled in large measure by the general counsel, Republican Sharon Gustafson, whose term expires in 2023. Note, however, the EEOC chair has significant authority over policy decisions that are sub-regulatory, and the president controls who on the commission is designated chair.

Once Democrats gain a majority on the NLRB and EEOC, there will be a whole host of topline items for them to tackle, which we will address at a later date.

Immigration

When it comes to immigration challenges that higher ed HR continues to face, we are likely to see a significant change between President Trump and President-Elect Biden. President-Elect Biden holds opposing views as it relates to humanitarian programs, refugees, enforcement and international students — likely meaning that we will see a Biden administration pause or freeze much of the regulatory action that could be underway when he assumes office. Some notable regulations that we expect to see abandoned include:

  • the proposed rule on Duration of Status which creates a fixed duration of admission of either two years or four years for international students
  • the proposed rule seeking to rescind an Obama-era regulation which extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants; and
  • a proposed rule reforming the optional practical training program, which was widely expected to eliminate the STEM extension promulgated under the Obama administration.

While the Trump administration and the incoming Biden administration are as different as night and day on the aforementioned immigration policies, when it comes to temporary worker programs, like the H-1B program for high-skilled nonimmigrants, expect some of the scrutiny that these programs have attracted under Trump to exist under Biden. In his “Build Back Better” campaign platform, Biden states that “an immigration system that crowds out high-skilled workers in favor of only entry-level wages and skills threatens American innovation and competitiveness.”

This populist streak could mean that recently finalized regulations — which were enjoined by a federal district court on December 1 — introducing stricter eligibility criteria for H-1B specialty occupations and changing the computation of wage levels for permanent labor certifications and labor condition applications may reemerge in a dissimilar manner under the Biden administration.

President-Elect Biden holds opposing views as it relates to humanitarian programs, refugees, enforcement and international students — likely meaning that we will see a Biden administration pause or freeze much of the regulatory action that could be underway when he assumes office.

Congress: A More Modest Agenda

Despite the results in Georgia, one thing that is certain is that the filibuster will remain in place for the 117th Congress, and the corresponding legislative agenda will be modest given the slim margins in the House and slimmer margins in the Senate.

About the author: Josh Ulman is CUPA-HR’s chief government relations officer, and Basil Thomson is a member of the government relations team.

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