Employers of all sizes and industries are likely to face a changed regulatory environment once Biden takes office. With a progressive bloc in the Senate less likely, the Biden administration may not initially have its full suite of legislative options, but it can begin to reverse some of President Trump's executive orders and issue its own. Multiple sources interviewed by HR Dive said executive orders and stronger enforcement of existing laws will be the main focus of the Biden administration's labor policy, especially in the short term, while also addressing a COVID-19 response with stronger worker safety measures.

Pandemic response and workplace safety

First, the U.S. is still in the midst of a "second wave" of the pandemic. According to Biden's campaign platform, the Occupational Safety and Health Administration (OSHA) is expected to issue emergency temporary standards, such as workplace safety and health guidelines for COVID-19. The platform also calls for doubling the number of OSHA investigators and introducing a "restart plan" to help employers "cover the costs of safe operations, including plexiglass and personal protective equipment."

Industries that rely on low-wage hourly workers, such as restaurants, retail, food service, and hospitality, should closely watch developments regarding tip wages, minimum wage, and worker classification, Myrna L. Maysonet, partner and chief diversity officer at law firm Greenspoon Marder, told HR Dive.

"Another area I think will have immediate impact is OSHA and its enforcement guidance around the coronavirus," Maysonet added. "Biden's views on the impact of the coronavirus and worker protection are different from Trump's, and that's where we expect to see drastic changes early on." She said this could affect companies such as manufacturers and food producers.

Democratic politicians and worker advocacy groups criticized OSHA's actions during the pandemic under the Trump administration, accusing it of failing to contain the virus to keep businesses running and calling the agency slow in enforcement. Meat producers JBS Food and Smithfield, as well as retail giant Amazon, were criticized for their practices. Maysonet reminded employers that penalties for violations may be more severe in the future.

Immigration policy

Trump and Biden have vastly different views on immigration. In addition to spending changes at the Departments of Labor and Homeland Security, Trump issued more than 400 immigration executive orders covering border enforcement, refugee resettlement and asylum, Deferred Action for Childhood Arrivals (DACA), immigration courts, and visa procedures.

Biden's campaign platform promises "emergency action" to restore the asylum system, repeal the "Muslim ban," and reform temporary visa programs. He acknowledges the role of immigrants in the U.S. economy and their value to employers.

"There are indications that the president-elect is prepared to use executive action to restore DACA and revoke the green card ban on Muslim-majority countries," said Richard Burke, CEO of Envoy Global.

While the Trump administration's approach to the H-1B program frustrated employers in some ways, Burke noted that the program saw improvements in certain areas, and even before Trump, H-1B reform had bipartisan support. "Not all changes implemented over the past four years were viewed negatively by our clients," he said. "One example is the introduction of the electronic registration for the H-1B annual quota. Ultimately, many in both parties believe the H-1B program needs reform. How the Biden administration addresses broader changes to the immigration system will depend largely on the final composition of the Senate."

Given the immense talent demand, many U.S. employers recruit and seek international workers, especially as demand for STEM and computer talent is significant and growing, according to the U.S. Bureau of Labor Statistics.

"While we don't know to what extent the Biden administration will make the U.S. immigration system more favorable, we know employers feel the pain of talent shortages and want the ability to sponsor more skilled foreign nationals to fill key positions in their organizations," Burke said.

Union policy

Under Trump, McNicholas said, the National Labor Relations Board "issued rule after rule making it harder for workers to organize when they want a union, harder to maintain a union once they have one, and harder to get employers to the bargaining table when necessary." She cited the administration's election rules and joint employer standard as examples.

In his campaign platform, Biden expressed support for unions and promised to "curb corporate power abuses against labor, hold corporate executives personally accountable for violating labor laws," and "encourage and incentivize unionization and collective bargaining." Biden received endorsements from more than 40 unions and industry groups, and several union leaders expressed optimism to Politico reporter Megan Cassella, who also noted that two union leaders were appointed to Biden's transition advisory board.

Although some argue Biden's legislative record on labor does not reflect a strongly pro-union stance, sources said that if he achieves his stated goals, he could become the most pro-union president in recent years. McNicholas said this position differs slightly from previous Democratic presidents, including Barack Obama, who could be described as pro-labor but did not usher in a new era for organized workers.

"I think the ability to join a union for working people hasn't been particularly supported by Democrats," McNicholas said. "In my view, it's worse under Republican control, but traditionally, Democratic politicians haven't been willing to invest political capital in this area."

However, Maysonet noted that Biden "will set goals in a completely different context" than Obama's era, with the pandemic and nationwide anti-racism movement making employers realize they have a responsibility to treat workers well beyond what the law requires. She advised employers to review their employee relations strategies and ensure they don't take on responsibilities the Trump administration might not have actively pursued.

"At the end of the day, you have to do what's best for your organization and stay realistic," Maysonet explained. "If you want to attract good talent with the high skills you need, you have to create a fair environment. You have to pay fairly." She added that her most successful employers proactively provide worker compensation, benefits, and protections beyond what the government requires.

"If you want to nickel and dime, you might gain in the short term, but in the long run, it will always hinder your success."