Despite racially charged attacks against them by the Republican incumbents’ and their allies, Reverend Raphael Warnock and Jon Ossoff reportedly became the first African American and Jew, respectively, to represent Georgia in the history of the United States Senate. Consequently, the Democrats now control the Senate as they control the United States House of Representatives. With the incoming Democratic administration led by President-elect Joseph Biden and Vice President-elect Kamala Harris, bold and progressive action regarding workplace safety and employee rights can begin without delay.
Commentators have observed that the new leadership in Congress as well as in the White House should have a concrete and immediate impact regarding, for example, the Trump Administration’s last-minute efforts to reduce employee rights. For example, the United States Department of Labor recently adopted a rule that enables companies to classify workers much more frequently as “independent contractors” rather than as employees. If allowed to stand, the new rule would likely encourage the misclassification of employees as independent contractors for purposes of wage claims under the Fair Labor Standards Act or otherwise. More to the point, the employee misclassification that would likely result could limit for millions of employees access to workers’ compensation and health insurance coverage in the midst of the raging pandemic and unemployment benefits during the ongoing recession. The United States Department of Agriculture is also finalizing a rule that would accelerate poultry plant lines to evidently dangerous levels and at a time when employees at meat-processing plants have been severely affected by the continuing pandemic.
Although final rules ordinarily cannot be rescinded without going through a number of time-consuming steps, the Congressional Review Act authorizes the newly elected Democratic President and the newly led Congress to repeal any such rule adopted in the prior sixty days via a simple majority vote in both the House and in the Senate. In this context, Vice President Harris could cast the tie-breaking vote in the Senate to begin the process of restoring vital workplace protections and employee rights. For the same reasons, we likely will not see further attempts by Congress to enact legislation that would enable employers to escape responsibility for harm to their employees or customers because of how those employers are responding to the pandemic.