Bob Shea Featured in Boston.com’s “Job Doc” Column

Bob Shea‘s discussion of the Massachusetts CROWN Act was featured in Boston.com’s “Ask the Job Doc” column. In the column, Bob answers a question about the Massachusetts CROWN Act as follows:

Q:  Can you describe to me what the CROWN Act is?  I thought I had a sound understanding of state laws, including PFML, but this is a new one for me.  Also, does it apply to everyone?  What about independent contractors or temps?  Can you help me understand?

A: The CROWN Act bans discrimination based on a person’s hairstyle, and in particular hair styles that may be associated with race.  Signed into law by Governor Baker, the law became effective on October 24, 2022.  Massachusetts has joined a growing number of states in prohibiting discrimination in schools and workplaces, based on hairstyles that are historically associated with race.

To share more detail, I consulted Robert Shea, a partner at Beck Reed Ridden LLP in Boston.  Shea explains that the “CROWN” in the CROWN Act stands for “Creating a Respectful and Open World for Natural Hair.”  Shea further adds, “The Act does not create a new protected class of individuals but rather expands the definition of race across multiple statutes in Massachusetts.”  The primary anti-discrimination statute in Massachusetts, Chapter 151B, now has an expanded definition of racial discrimination, which includes hairstyles that may be “historically associated with race, including, but not limited to, hair texture, hair type, hair length and protective hairstyles.”  More specifically, these hairstyles include braids, locks, twists, Bantu knots or hair coverings.  In the past, workplace dress codes may have forced many men and women to adapt their hairstyles to conform to a dress code, or a health or safety standard.

The CROWN Act applies to employers with 6 or more employees.  Independent contractors and temporary employees can also file a claim against an employer, or a school, citing race, or CROWN Act, discrimination.

In Massachusetts, the CROWN Act was born out of a 2017 policy violation, which occurred at a Massachusetts charter school.  Two sisters were disciplined for wearing braid extensions, which school administrators said was against school policy. This hairstyle had been banned at this charter school at that time and the sisters were barred from several school events.  CROWN Act supporters have expressed concerns about how Black women, in particular, have been treated differently because of their hair styles.  The American Civil Liberties Union filed a complaint against the school, based on the school’s policy.

Massachusetts employers should review any related policies and/or handbooks to ensure they are complying with the CROWN Act.  If there are health or safety issues within the workplace (e.g. serving food or operating machinery), an employer may request that hair should be covered or fastened to eliminate health or safety concerns.  However, these requests should be applied consistently, to any employee, based on the role and the job duties.


The column was written by Pattie Hunt Sinacole, CEO and Founder of First Beacon Group LLC.


ob Shea represents clients in all areas of labor and employment law. With a comprehensive understanding of this legal landscape, he assists clients in various industries, offering counsel on matters such as discrimination, termination, wage disputes, and compliance issues.

His commitment to finding effective solutions sets him apart. Bob dedicates a substantial part of his practice to alternative dispute resolution (ADR), emphasizing mediation and arbitration as powerful tools to resolve conflicts outside of traditional courtroom proceedings.

Bob’s approach is characterized by a combination of legal expertise, strategic insight, and a keen understanding of his clients’ specific needs. He prioritizes clear communication and collaborative problem-solving, ensuring that each client receives tailored guidance and representation throughout the legal process.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck, Steve Riden, and Bob Shea Named Top 100 Lawyers

Super Lawyers Magazine has again selected Russell BeckStephen Riden, and Bob Shea as three of the Top 100 Super Lawyers in Massachusetts.

Russell Beck is a business and intellectual property litigator, nationally recognized for his trade secrets and noncompete experience. Russell has more than thirty years of experience as a complex business and intellectual property litigator, representing corporate and individual clients throughout the country. Russell has also been named one of the 2023 Top 10 Super Lawyers in Massachusetts.

Steve Riden is a commercial litigator who represents corporate and individual clients in a wide array of disputes across the country. Steve has extensive experience litigating business disputes involving breach of contract, fraud, unfair competition, trade secrets, and noncompete agreements.

Robert Shea advises and represents clients in all areas of labor and employment law. He devotes a significant portion of his practice to alternative dispute resolution, both as an advocate and a neutral.

The selection of the top 100 Super Lawyers in Massachusetts is based on a process of peer review following a survey of lawyers from the region. The Super Lawyers selection process is described in detail here.

 is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP Attorneys Named to 2024 Best Lawyers in America List

Beck Reed Riden LLP is pleased to announce that four of its lawyers have been named to the 2024 Edition of Best Lawyers. In addition, Russell Beck was named the 2024 Best Lawyers® Lawyer of the Year” in Employment Law – Management in Boston, and Trade Secrets Law in Boston.

Russell Beck, Stephen Riden, Nicole Daly, and Bob Shea were named to the 2024 Best Lawyers in America list in the following categories:

  • Russell Beck: Commercial Litigation, Employment Law – Management, Litigation – Labor and Employment, and Trade Secrets Law
  • Steve Riden: Commercial Litigation, and Litigation – Labor and Employment
  • Nicole Daly: Employment Law – Management, and Litigation – Labor and Employment
  • Bob Shea: Employment Law – Management

Best Lawyers accolades recognize the top 5% of legal talent in private practice throughout the United States.

Best Lawyers has published their list for more than 40 years. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Best Lawyers Award BadgeLawyers on the Best Lawyers in America ® list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing. For the 2024 edition of The Best Lawyers in America, more than 13.7 million votes were analyzed to identify the top legal talent, as identified by their peers.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck, Steve Riden, and Bob Shea Named Top 100 Lawyers

Super Lawyers Magazine has selected Russell BeckStephen Riden, and Bob Shea as three of the Top 100 Super Lawyers in Massachusetts.

Russell Beck is a business and intellectual property litigator, nationally recognized for his trade secrets and noncompete experience. Russell has more than thirty years of experience as a complex business and intellectual property litigator, representing corporate and individual clients throughout the country. Russell has also been named one of the Top 10 Super Lawyers in Massachusetts.

Steve Riden is a commercial litigator who represents corporate and individual clients in a wide array of disputes across the country. Steve has extensive experience litigating business disputes involving breach of contract, fraud, unfair competition, trade secrets, and noncompete agreements.

Robert Shea advises and represents clients in all areas of labor and employment law. He devotes a significant portion of his practice to alternative dispute resolution, both as an advocate and a neutral.

The selection of the top 100 Super Lawyers in Massachusetts is based on a process of peer review following a survey of lawyers from the region. The Super Lawyers selection process is described in detail here.

 is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP Attorneys Named to 2023 Best Lawyers in America List

Beck Reed Riden LLP is pleased to announce that four of its lawyers have been named to the 2023 Edition of Best Lawyers, and one of its lawyers was included in Best Lawyers: Ones to WatchIn addition, Russell Beck was named the 2023 Best Lawyers® Lawyer of the Year” in Litigation – Labor and Employment in Boston, and Trade Secrets Law in Boston.

Russell Beck, Stephen Riden, Nicole Daly, and Bob Shea were named to the 2023 Best Lawyers in America list in the following categories:

  • Russell Beck, Commercial Litigation, Employment Law – Management, Litigation – Labor and Employment, and Trade Secrets Law
  • Steve RidenCommercial Litigation
  • Nicole DalyEmployment Law – Management, and Litigation – Labor and Employment
  • Bob Shea, Employment Law – Management

In addition, Jillian Carson was included in Best Lawyers: Ones to Watch in the areas of Commercial Litigation and Litigation – Labor and Employment.

Best Lawyers has published their list for over three decades. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Best Lawyers Award BadgeLawyers on the Best Lawyers in America ® list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing. For the 2023 edition of The Best Lawyers in America, more than 12.2 million votes were analyzed to identify the top legal talent, as identified by their peers.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP Attorneys Named Super Lawyers

Russell Beck, Stephen Riden, Bob Shea, and Nicole Gage have been recognized as Super Lawyers by the 2021 issue of Massachusetts Super Lawyers Magazine. In addition, Nicole Daly, Hannah Joseph, Jillian Carson, and Kyle Vieira have been recognized as Rising Stars by the Magazine.

Super Lawyers Magazine has selected Russell Beck as one of the Top 10 Super Lawyers in Massachusetts for 2021.

Stephen Riden and Bob Shea were selected as two of the Top 100 Super Lawyers in Massachusetts.

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40.  The Super Lawyers selection process is described in detail here.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP Attorneys Named to 2022 Best Lawyers in America List

Beck Reed Riden LLP is pleased to announce that four of its lawyers have been named to the 2022 Edition of Best Lawyers, and one of its lawyers was included in Best Lawyers: Ones to WatchIn addition, Russell Beck was named Lawyer of the Year in the category of LitigationLabor and Employment.

Russell Beck, Stephen Riden, Nicole Daly, and Bob Shea were named to the 2022 Best Lawyers in America list in the following categories:

  • Russell Beck, Commercial Litigation, Employment Law – Management, Litigation – Labor and Employment, and Trade Secrets Law
  • Steve RidenCommercial Litigation
  • Nicole DalyEmployment Law – Management, and Litigation – Labor and Employment
  • Bob Shea, Employment Law – Management

In addition, Hannah Joseph was included in Best Lawyers: Ones to Watch in the areas of Commercial Litigation, Labor and Employment Law – Management, and Litigation – Intellectual Property.

Best Lawyers has published their list for over three decades. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Best Lawyers Award BadgeLawyers on the Best Lawyers in America ® list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing. For the 2022 edition of The Best Lawyers in America®, more than 10.8 million votes were analyzed, which resulted in more than 66,000 leading lawyers being included in the new edition.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Bob Shea Featured in Boston.com’s “Job Doc” Column

Bob Shea‘s advice to departing employees was featured in Boston.com’s “Ask the Job Doc” column.

In the column, Bob answers a question about whether an employee can quit and then use vacation days as part of the two-week notice period as follows:


I consulted Robert Shea, an experienced employment lawyer and partner at Beck Reed Riden LLP in Boston. Shea shares “It’s a maybe for the vacation time and a no for the sick time. Pay for accrued, unused vacation time is considered as ‘wages’ under Massachusetts state law and must be paid out when you leave the organization. If you prefer to use your accrued vacation during your 10-day notice period, you may be able to do so but your vacation time request presumably will be subject to your employer’s policy for approving vacation time requests. Most employers have a policy that vacation days must be pre-approved before they can be taken. Potentially, your employer may decide not to approve your vacation request because it wants you to be at work during the 10-day notice period to assist in transitioning your job responsibilities.”

With respect to earned sick time, this time is treated differently under Massachusetts law. Shea advises “Massachusetts employers are not required to pay out unused earned sick time at termination. Further, and in response to your specific question, earned sick time is to be used only for one or more of the purposes set forth in the law (e.g., to care for the employee’s physical or mental illness, injury, or medical condition) and using it simply to take time off during your 10-day notice period is not one those purposes.”

In short, earned sick time is not an entitlement and there are specific reasons, outlined in the Massachusetts law, which would enable an employee take this time off.


The column was written by Pattie Hunt Sinacole, CEO and Founder of First Beacon Group LLC.

Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Can – and Should – Employers Mandate COVID-19 Vaccines?

As the COVID-19 vaccines become more widely available, many employers are considering whether to mandate that their employees get vaccinated. The decision can be complicated. As they evaluate how best to proceed, employers need to understand their legal rights and obligations, and also to consider the practical consequences associated with any vaccination mandate.

Are employee vaccination mandates lawful?

Can employers lawfully require that employees get vaccinated? The answer is a qualified “yes.” Responding to employer uncertainty, on December 16, 2020 the U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance addressing certain issues relating to the administration of COVID-19 vaccines to employees and the federal discrimination laws enforced by the EEOC. The EEOC guidance clarified that an employer generally can require that employees get vaccinated as a condition to returning to the workplace. An employer also can require that employees provide proof that they have been vaccinated.

owever, if an employee notifies an employer that the employee cannot get vaccinated due to a disability, under the federal Americans with Disabilities Act (ADA) the employer cannot exclude the employee from the workplace unless the employer can show that the “unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”

  • This requires the employer to conduct an individualized assessment of: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
  • Under current pandemic conditions, many employers will be able to show that such a direct threat exists. However, even if the employer can show that the unvaccinated employee would pose a direct threat, the employer must still engage in an ADA-required “interactive process” with the employee to determine whether it is possible to provide a “reasonable accommodation” to the employee (to enable the employee to work) without incurring an “undue hardship.”
  • A reasonable accommodation could potentially include permitting the employee to work in a more isolated area of the workplace, or to work remotely.

Similarly, if an employee notifies an employer that the employee cannot get vaccinated due to a sincerely held religious belief or practice, the employer must provide reasonable accommodations to the employee unless providing an accommodation would pose an undue hardship under Title VII of the Civil Rights Act of 1964.

  • In its guidance, the EEOC notes that courts have defined “undue hardship” under Title VII to include anything “having more than a de minimis cost or burden on the employer.” The EEOC cautions that employers should assume a request for religious accommodation is legitimate unless there is an objective basis to question the religious nature or sincerity of a religious belief, practice or observance.
  • Again, one form of reasonable accommodation that potentially could be required is to permit the employee to work (or continue to work) remotely. Given the widescale remote working occurring since the pandemic started, it may prove difficult for an employer to establish that permitting an employee to continue working remotely is unreasonable or poses an undue hardship on the employer.

Accordingly, if an employer mandates that employees be vaccinated and an employee refuses, the employer should determine the reason for employee’s refusal and, if the refusal is based upon an asserted disability or religious belief or practice, determine whether the refusal needs to be accommodated under the ADA or Title VII (and/or any corresponding state or local law). In addition, if any employees in the workplace are unionized, the employer should determine its collective bargaining obligations before implementing a vaccine mandate.

 Do employee vaccination mandates make sense?

ssuming an employer can lawfully mandate employee vaccinations, should the employer do so? The answer to this question will vary from employer to employer and will depend upon a variety of factors, such as whether vaccines are generally available to employees, whether employees work in close quarters and/or where social distancing is difficult, whether employees have close contact with customers or members of the public, and whether unvaccinated employees are likely to have contact with a health-compromised population. Thus, for example, health care and hospitality employers may have a more compelling reason to mandate vaccinations then agricultural employers whose employees may work outdoors and maintain social distance.

Employers also should consider that some employees may have a strong reluctance to being vaccinated (unrelated to any specific disability or religious belief or practice) and/or may object to being told by their employer that they must be vaccinated. Some individuals are fiercely anti-vaccine. Some pregnant women are concerned about the potential effects the newly developed vaccines may have on their pregnancies. Are employers prepared to terminate employees if they refuse to be vaccinated? Will drawing a hardline on mandating vaccinations lead to business operational issues and create employee morale problems?

There is precedent for vaccine mandates, of course. For years, many hospitals and health care companies have required flu vaccines and tuberculosis testing for employees. Schools generally require vaccines against measles, mumps and rubella. Notably, however, unlike these other vaccines, the COVID-19 vaccines are not yet approved by the U.S. Food and Drug Administration; they are currently only “authorized for emergency use” pending further studies. Thus, there is some possibility that employers could face liability for requiring COVID-19 vaccinations if employees experience significant adverse side effects.

Early surveys suggest that currently most employers are deciding not to mandate vaccinations. Many employers are choosing to encourage, not require, that employees be vaccinated. Some employers are choosing to require vaccinations only for certain positions, such as positions involving travel or in-person contact with the public. Of course, employer attitudes and approaches with respect to vaccine mandates may change as vaccines become more available, as further government guidance is provided, and/or as new medical information becomes available.

As an alternative to mandating vaccines, some employers are offering incentives for getting vaccinated, such as paid time off from work or gift cards. Although modest incentives are likely permissible, there is some uncertainty concerning whether providing benefits to employees who get vaccinated, while not providing such benefits to employees who do not get vaccinated due to their disabilities or religious beliefs or practice, might constitute unlawful discrimination. The EEOC has raised concerns in the past about what constitutes “voluntary participation” in an employer “wellness program” under the ADA and other discrimination laws. Consequently, on February 1, 2021, a broad coalition of over forty employer and industry organizations sent a letter to the Chair of the EEOC urging the EEOC “to issue guidance providing clarification on the extent to which employers may offer their employees incentives to vaccinate.” To date, no such guidance has been provided.

Proceed with Caution

Any decision to mandate employee vaccinations should be evaluated with careful consideration of both legal obligations and practical consequences. Substantial legal risks exist, and employers should consult with counsel before implementing any vaccine mandate policy as well as before taking any adverse action with respect to an employee who refuses to get vaccinated. Employers should also obtain legal advice before offering any significant benefits to employees as vaccination incentives. The COVID-19 pandemic has presented employers with many novel HR issues over the past twelve months. It continues to be critically important for employers to exercise sound judgment and proceed with caution.

Bob Shea is the author of this article. Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

What Can Employers Expect from the Biden Administration?

When a Democratic Party President succeeds a Republican Party President (or vice versa) employers can expect a shift in federal employment law policy. The shift in policy plays out through new administration-supported legislation and Presidential executive orders, and, at the federal agency level, through new agency leadership, new regulations and interpretative guidance, and changes in enforcement priorities and initiatives.

This year, in the transfer of power from the Trump administration to the Biden administration, employers may see a more dramatic swing in employment law policy than seen in most changes in presidential administrations, and potentially even more than the swing seen with the change from President Obama to President Trump.

Here are some labor and employment law areas in which employers should expect to see significant changes:

OSHA/Workplace Safety

President Biden has been critical of the Occupational Safety and Health Administration’s (“OSHA’s”) actions in maintaining workplace safety during the COVID-19 pandemic, including OSHA’s reliance on the “general duty” standard for enforcing employer obligations, and he has stated that he would demand more aggressive action.

True to his word, on January 21, 2021, his first full day in office, President Biden issued an executive order (“EO”) requiring OSHA, within two weeks, to consider whether an “emergency COVID-19 standard” is necessary to protect workplaces and to implement such a standard by no later than March 15, 2021. The EO also requires OSHA, within two weeks, to issue revised guidance to employers on workplace safety during the pandemic.

More broadly, the EO requires OSHA to review its current enforcement efforts and “identify any short-, medium-, and long-term changes that could be made to better protect workers and ensure equity in enforcement.” OSHA will be considering that employers complete more detailed OSHA 300 Logs on workplace injuries and illnesses. In general, employers should expect that OSHA under President Biden will taking a larger and more active role in workplace safety issues related to COVID-19 and beyond.

NLRA/Traditional Labor

Candidate Biden promised he would “be the most pro-union president you’ve ever seen.” Now, as President, he is immediately taking steps to fulfill that promise, including nominating Boston Mayor Marty Walsh, a former union leader, to be U.S. Secretary of Labor, naming a current Democrat Board Member to be Chair of the National Labor Relations Board (“NLRB” or “Board”) and firing the NLRB’s employer-friendly General Counsel when he refused to resign. He will be filling an open slot on the NLRB’s five member Board with a Democrat and, in August, will be able fill another slot with a Democrat when a Republican Board Member’s term expires. By 2022, Democrats will likely hold three of the five spots on the Board.

he “Biden Board” likely will seek to bring back some of the pro-union measures taken by the Obama Board, including accelerated (often called “ambush”) election procedures and timetables that tended to make it easier for unions to win elections and rules that treated as unlawful some employer prohibitions on anti-employer statements on social media. The Biden Board may take steps to broaden union access to employees, to restrict employer anti-union campaign, and to undo the current joint-employer rule that has been an obstacle to union organizing.

The action that would have the greatest impact on the traditional labor landscape would be the passage of the Protecting the Right to Organize (“PRO”) Act, which contains a wish list of pro-union changes to the National Labor Relations Act. (“NLRA”). The PRO Act would, among many other things, create a private right of action for alleged NLRA violations similar to those available under federal employment discrimination statutes, and also provide for greatly enhanced penalties such as double or triple back pay awards, emotional distress damages, individual liability for officers and executives, and attorneys’ fee awards. While passage of this legislation would be the most impactful action, it is also the action least likely to occur because Democrats are unlikely to have enough votes (60) to overcome a Republican filibuster in the Senate.

Wage and Hour Law

President Biden has advocated for a substantial increase in the federal minimum wage – up to $15 by the year 2026. On January 22, 2021, he jump-started that effort by announcing that he was directing his administration to start the work that would allow him to issue an EO within his first 100 days in office requiring federal contractors to pay a $15 minimum hourly wage to workers. In addition, under Secretary of Labor Walsh (assuming he is confirmed, the first former union official to serve as Secretary of Labor in half a century), the U.S. Department of Labor (“DOL”) will most certainly take a more pro-labor approach in its interpretation and enforcement of the federal Fair Labor Standards Act and other wage and hour laws.

Under President Trump, the DOL scaled back significantly the Obama DOL’s overtime regulations and promulgated its own employer-friendly regulations establishing new tests for determining joint-employer and independent contractor status. The DOL now is likely to go in the other direction on these and other wage and hour issues. President Biden and the DOL may take steps to limit the use of mandatory arbitration and class action waivers for claims under federal wage and hour laws. Overall, employers should expect that the DOL will have a progressive pro-labor agenda.

Paid Leave

Candidate Biden advocated for legislation that would provide 12 weeks of paid leave for all workers for their own or a family member’s serious health condition. Upon taking office on January 20th President Biden issued the “American Rescue Plan” to address the COVID-19 pandemic and boost the U.S. economy. Among other things, the plan would extend the leave provisions under the Families First Coronavirus Response Act through September 2021 and expand the law to require employers to “provide over 14 weeks of paid sick and family and medical leave.”

On January 22, President Biden announced that he was directing his administration to start the work that would allow him to issue an EO within his first 100 days in office requiring federal contractors to provide “emergency paid leave” to workers. Although it is unclear what form of more broadly applicable paid leave law can make it through Congress, President Biden has made clear his intention to make federally-mandated paid leave a part of the workplace law landscape

Pay Equity

Candidate Biden stated that he supports a bill titled the “Paycheck Fairness Act.” The bill’s stated purpose is to address wage discrimination on the basis of sex and reduce the gender pay gap. It would, among other things, restrict the use of the “bona fide factor” defense to pay discrimination claims and increase civil penalties for violations of equal pay requirements. The Democrat-controlled House passed the bill in 2019 but the Republican-controlled Senate took no action on it. Now, President Biden’s election, combined with the Democrat victories in the Senate run-off elections in Georgia, increase the chances of the bill becoming law.

More generally, President Biden appears committed to addressing gender and racial pay inequities. On January 21, 2021, he appointed Charlotte Burrows as Chair of the Equal Employment Opportunity Commission. Chair Burrows served as an Associate Deputy General in the Obama administration and most recently served as the Executive Director at the William Institute of the UCLA Law School, focusing on strategies to attain equality for sexual and gender minorities.

Immigration

President Biden intends to pursue a broad immigration reform agenda. He has proposed comprehensive legislation aimed at creating a path to citizenship for millions of undocumented immigrants living in the U.S., including individuals brought to the country as children (so-called “Dreamers”), eliminating green card quotas, reducing lengthy backlogs and improving efficiencies for work visa programs. On his first day in office, he issued a series of EOs that reversed Trump administration policies (1) restricting entry to the U.S. for people from certain Muslim-majority countries (the so-called “Muslim Ban”) and (2) ending work authorization for Deferred Action for Childhood Arrivals (“DACA”) recipients.

Noncompetes

President-elect Biden has stated that he “will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all no-poaching agreements.” His position is premised, at least in part, on an assumption that for a large percentage of the American workforce noncompetes have restricted employees’ freedom to move to other jobs and earn higher pay. My colleague Russell Beck has written a detailed analysis of President Biden’s proposed noncompete ban, including protection strategies and steps for employers to take now. Russell’s analysis can be found here.

Every change in administration that includes a change from one party to the other results in significant policy changes and new legislative and administrative actions. In the dynamic and politically sensitive world of labor and employment law, these changes in policy and actions can be quite substantial. And, on top of that, this year we’ve had a change in administrations involving two leaders who hold fundamentally different views on what is best for employers and for employees, and what role government should play in setting and enforcing workplace laws. Consequently, employers should expect more changes at this time than they normally see every four or eight years.

Bob Shea is the author of this article. Bob represents clients in all areas of labor and employment law. He focuses a significant portion of his practice on alternative dispute resolution.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

1 2