Biden’s Regulatory Agencies Quietly Tilting Workplace Power Toward Employees

Before August hit, many legal teams might have considered the chance of their company’s employees unionizing as minuscule.

Suddenly, as a result of a single, employee-friendly National Labor Relations Board (NLRB) ruling, the calculus has completely changed.

The ruling in Cemex Construction Materials Pacific LLC puts employers in the onerous position of being forced to recognize and bargain with a union—unless they take swift action to request an employee election and prevail in that election. The upshot is that, in some cases, employees will be able to unionize without having to seek and prevail in a vote by workers, long the biggest obstacle to successful unionizing efforts.

“These changes radically shift the legal landscape for companies,” Morgan, Lewis & Bockius wrote in a note to corporate clients, and “make it much easier for unions to organize.”

Such a change would never have happened had Democrat Joe Biden not won the White House in 2020 and used his power to nominate NLRB board members to flip it to Democratic control.

The extent Biden to which has used that nominating power across all the major regulatory agencies to tilt the balance of power from management and toward workers has been largely overlooked by the mainstream media. But the shift has been substantial, and the implications are staggering.

The Federal Trade Commission (FTC), for instance, is advancing plans to ban non-compete agreements that can prevent workers from freely switching jobs, thereby limiting their employment options and holding back their income.

Meanwhile, an early August NLRB ruling substantially narrows the scope of work rules companies can impose on workers, a shift that has left businesses scrambling to update their employee handbooks. The change applies to the vast majority of employers, not just those with unionized workers.

Also rattling businesses are new merger-review guidelines that the FTC proposed in June, which, for the first time, factor in how a deal would affect jobs. That’s raised concerns that deals with lots of “synergies” in the form of overlapping jobs which likely would be axed could face regulatory pushback.

In another blow to employers, the Labor Department proposed expanding the number of lower-paid salaried employees who are eligible for overtime pay, a shift that the department says would affect 3.6 million people and put another $1.2 billion in workers’ paychecks in the first year.

Labor and employment attorneys say more employee-friendly initiatives likely are on the way, especially from the Equal Employment Opportunity Commission (EEOC), whose board did not flip Democratic until July, with the Senate-approved Biden nominee Kalpana Kotagal. Just weeks later, the EEOC proposed new protections for pregnant workers, including longer breaks and teleworking privileges.

Employment lawyers in recent weeks have been issuing a deluge of client notes advising how to avoid landing in regulators’ crosshairs as these new regulations take effect. But the new climate set by the Biden administration won’t be measurable solely by the number or gravity of enforcement actions brought by regulators.

A larger impact likely will be how companies soften their policies and practices to avoid being accused of misbehavior in the first place. As Trecia Moore, senior counsel at Husch Blackwell and a former NLRB investigator, noted in the story on the NLRB’s historic new rules for unionizing, “Employers need to be engaged. We need to listen to our employees as to what they’re wanting. If we’re doing the right things before a union can infiltrate, we don’t have anything to worry about.”

See also:

• Report Finds Conditions Favorable for the Growth of Unions
• Historic NLRB Ruling Gives Workers Path to Unionize Without Having to Vote

From: Law.com