Skip to main content
Washington Times

Small businesses struggle to keep up with Washington regulatory edicts

By September 5, 2023No Comments

(This column originally appeared in The Washington Times)


Is the Biden administration anti-business? That’s certainly something to be debated over dinner. But there’s no debate about one thing: This administration is one of the most pro-worker and pro-regulation administrations in recent memories.

Since taking office in 2021, President Biden’s various departments and agencies have issued numerous pro-worker rulings and proposals and supported left-leaning states in their efforts to increase their minimum wage, require paid time off, implement transparency rules, change worker classifications, increase safety regulations and eliminate noncompete clauses.

And the regulations aren’t ending anytime soon. Just in the past few weeks, Biden administration agencies have made it easier for unions to unionize workers, for workers to sue over discrimination or harassment, and to force businesses to tell the government about their ownership structure. Where to start?

Let’s start with the National Labor Relations Board, or NLRB. Last week, the NLRB established rules related to Representation Case Procedures that are to take effect this December. These rules will allow “ambush elections.”

What kind of ambush? The kind that gives unions the ability to force elections on employers quicker.

The rules limit a company’s ability to contest an election and narrow its options for communicating its positions to its employees, including having a right to hearings and being allowed more time to prepare and state its case. The rules also force employees to share their contact information with unions, among other requirements.

But that’s not it for the NLRB.

Thanks to a recent court victory (the “Cemex” case), the NLRB will no longer require unions to file a petition for an election. Unions can also use “card majorities” (a method for employees to organize into a labor union in which a majority of employees sign authorization cards stating they wish to be represented by the union) for recognition instead of having an election, with the burden falling on the employer to bargain.

Unions can gather these cards from employees and then share them with the employer whenever it suits them, which may be at a time when employees are concerned about layoffs or a slowing economy. In other words, formal elections are thrown out the window, and unions control the timetable for counting up the card votes.

And woe be to the company if they’re caught in any “misconduct” (as loosely defined), so unions are more apt to challenge an employer’s behavior.

“We find ourselves in a ‘hot labor summer’ of strikes at levels not seen in decades, and labor activity in industries historically not interested or involved in labor activity,” attorneys Thomas A. Lenz and Michael R. Watts wrote. “These labor actions inspire employees and unions in even more settings to pursue their goals in ways employers may view as confrontational, but with the protection of the labor laws.”

The Equal Employment Opportunity Commission has been active over the past year. According to its most recent annual report, the agency obtained more than $513 million in monetary benefits for victims of discrimination, an increase from the previous fiscal year, resolved over 65,000 charges of discrimination and conducted more than 3,000 free outreach events reaching almost 220,000 employees.

And that’s just the start.

In its latest strategic plan, the commission plans to expand “its capacity to eliminate systemic barriers to equal opportunity in the workplace, including training staff to identify and investigate systemic cases and devoting additional resources to systemic enforcement.”

It also plans to “focus on improving and expanding access to intake services” (which enables employees to submit online inquiries and online requests for intake interviews), increasing the availability of intake interview appointments, and “improving overall service to the public.”

“The new Strategic Plan … emphasizes expanding the EEOC’s capacity to eliminate systemic barriers to equal opportunity in the workplace, using technology and other tools to improve our services to the public, and achieving organizational excellence with a culture of accountability, inclusivity, and accessibility,” said EEOC Chair Charlotte A. Burrows.

Finally, businesses need to prepare for new regulations from the Treasury Department that will require them to share information about their owners with the federal government.

This is part of the Corporate Transparency Act, which is legislation enacted by Congress as part of the Anti-Money Laundering Act of 2020 that aims to stem criminal activity through ownership of corporate entities. It applies to all businesses, regardless of size.

Companies that were in existence before Jan. 1, 2024, will have one year to comply with the 330-page set of rules.

Although the act was passed before Mr. Biden took office, it was passed by a Democratic-controlled Congress late in 2020, and you can bet it will be vigorously implemented by the administration. Although the details of what’s compulsory are still hazy, small businesses can look forward to a “compliance guide” to help them with the reporting requirements, which is an ominous sign that things won’t be simple.

Is that it? Is it over? Not by a long shot. Look for more rules both at the federal level and among blue states on increasing overtime pay, expanding pay transparency, mandating more paid time off and making it easier for unions to unionize, as well as widespread increases in minimum wages and other employer regulations over the next year.

It’s great stuff for employees but not so great for businesses — unless your business is being a labor attorney, of course.

Skip to content