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November 16, 2020

A Look At Potential Biden Administration Policies

While President Donald Trump has not conceded the 2020 race for U.S. president, his challenger Joe Biden is on track to become the 46th president of the United States on January 20, 2021.

Last week, Biden announced key members of his transition team and news outlets and public policy professionals are speculating about the immediate public policy changes Biden will make or pursue. Connecting the Dots offers a look at the possibilities for the information of its members only. The Metals Service Center Institute has not taken a position on the proposals, but will keep its members informed as legislation and regulation are debated, voted on, and implemented.

Issues that Biden could tackle soon after inauguration include:

  • Section 232 Tariffs For Metals. While Argus Media predicts Biden will make some changes to how these penalties are applied, particularly for European trading partners, a recent news story also said a Biden administration would aim to provide “some support for the steel industry and metal intensive industries themselves.”
  • Trade Pact With The United Kingdom. According to Bloomberg Government (subscription required), it is unlikely that the United States will quickly close a trade deal with the United Kingdom (UK) even though, under the Trump administration, the two countries already have had five rounds of formal negotiations. Prime Minister Boris Johnson wrote to Biden after the election that demonstrated his hope for a bilateral trade deal, but the fact is a new U.S. trade representative may not be in place for months. Robert Lighthizer, President Trump’s top trade adviser, was not confirmed by the U.S. Senate until four months after inauguration day in 2017, for example. Meanwhile, last week, Canadian Prime Minister Justin Trudeau said he hopes his country can reach a trade deal with the UK before the end of this year.
  • Oil And Gas Pipelines. As Reuters noted last week, the Obama/Biden administration blocked permits for new oil and gas projects like the Keystone Pipeline and the Dakota Access Pipeline (DAP). Both projects are still undergoing litigation, but the U.S. Army Corps of Engineers has allowed the DAP to move forward even without a permit. Reuters said Biden “could bring in new Army Corps leadership,” a move that would “increase the chances that the line would be shut.” MSCI’s partners at the Energy Equipment Infrastructure Alliance have said that, under a Biden administration, “new agency rules and permitting hurdles would make oil and gas production, new pipelines and other energy infrastructure projects more difficult to get approved, and more expensive to develop.” The law firm Sidley Austin discussed other energy-related changes that are likely to emerge under the new administration in this report.

The law firm Ackerman has provided a broad overview of what a Biden administration would mean for several labor and employment policy matters, including:

  • Reemergence Of Card Check. Biden was a co-sponsor of the original 2008 Employee Free Choice Act (EFCA), which allowed workers to choose to form a union if a majority signed union authorization cards, instead of through voting in an National Labor Relations Board (NLRB) conducted secret ballot election. Biden has indicated that he continues to strongly support implementation of card check.
  • Broader Definition Of Joint Employers. Biden has pledged to codify the broad definition of joint employment applied in the Browning-Ferris decision, which expanded the definition of a joint employer to include companies that do not only have direct control over employees, but that might have indirect control or even the mere potential to control employees.
  • Codifying Ambush Election Rules. Under President Barack Obama, the NLRB implemented revised union election rules that shortened the time between the filing of a union election petition and the election itself to an average of 21 days, down from a previous average that hovered around 38 days. Biden would be expected to codify the shortened election timelines into law.
  • Ban Right To Work Laws. Right to work laws prohibit agreements between employers and unions that require employees pay dues or some portion of dues to a union as a condition of employment. Current legislation that Biden supports, the PRO Act, would supersede these laws.
  • Penalties For Business Leaders. The PRO Act also creates monetary penalties, including personal liability for corporate officers and directors, as a remedy if an employer is found to have violated the National Labor Relation Act. These penalties include consequential damages (double the amount of actual damages), punitive damages, and fines that range from $10,000 to $100,000 per violation.
  • Codify Persuader Regulations. The Obama/Biden administration’s Department of Labor proposed a regulation that would have required employers to report the hiring of a lawyer or consultant to help with union organizing. The lawyer or consultant also would be required to report all fees received from all clients. Biden’s plan would reinstate and codify this persuader rule into law.

Click here to read Akerman’s full report. Politico also has discussed the approach a Biden administration would take to labor and employment policy and MSCI’s partners as the Coalition for a Democratic Workplace also have put together a fact sheet.