Post-Election Analysis 2020: Education & Workforce
Read Ahead: Child Care & Early Learning | K-12 | Online Learning | Student Loans and College Affordability | Accountability | Campus Safety | Student-Athletes | Research | Workforce Training | Labor | Immigration
Divided government always complicates major changes in any policy area, and education is no exception. What once was a traditionally bipartisan issue in Congress has become mired in partisan politics during the Trump Administration. President-elect Biden is known for his art of negotiation to reach bipartisan agreements in the Senate, but it is somewhat unclear where Senate Republicans can make headway with Democrats, especially as Republicans hold the line on federal spending.
If congressional leaders work together to include education funding in another COVID-19 relief package, it may present some good will to work across the aisle on HEA reauthorization—the next priority for education leaders. The composition of the Senate and leadership of the Health, Education, Labor and Pensions (HELP) Committee will determine the pace and scope of HEA negotiations. While there is bipartisan agreement in several areas (e.g., simplifying repayment of loans, strengthening the Pell Grant, and improving accountability in the system), the parties disagree on the best methods to move each of these changes forward. Moreover, the pandemic has shed light on the equity gaps within the broader higher education system. While House Democrats are expected to dust off their reauthorization bill, the College Affordability Act (H.R. 4674), the bill's leaders will look to make important updates to the massive overhaul following COVID-19, including some potential pay-fors. The bill was reported out of the House Education and Labor Committee in late 2019 but failed to advance to the floor before the pandemic hit the following March. Further, with the Every Student Succeeds Act (ESSA) expiring in FY 2020, there will be calls for its reauthorization, although it is more likely Congress will prioritize early learning in the 117th Congress after HEA.
The Democratic-led House also will pick up its work from the 116th Congress on diversity, equity, and inclusion. In September, the House passed the Equity and Inclusion Enforcement Act (H.R. 2574) and the Strength in Diversity Act (H.R. 2639/S. 1418) to provide additional civil rights protections and expand diversity in K-12 schools, respectively. Vice President-elect Kamala Harris is a cosponsor of the Strength in Diversity Act, and President-elect Biden stated his support for the bill during the campaign. On higher education policy, the COVID-19 pandemic and racial justice movement have pushed Democratic lawmakers to call for more progressive education policy solutions like student debt cancellation. It is not entirely clear lawmakers will wait to pass a massive HEA overhaul to enact such changes. Still, some of these proposals may find their way into an updated House HEA package, but it is unlikely Senate Republicans will support them in part due to costs. Republicans will remain concerned about increasing the national debt due to emergency funding in the three coronavirus relief packages enacted this year. Swift regulatory action from the Biden Administration is expected to reverse Education Secretary Betsy DeVos's regulations impacting the for-profit sector, with the potential for more rulemaking if progress on HEA stalls in Congress.
As part of his policy agenda, President-elect Biden has pledged to appoint a public-school teacher to the role of Secretary of Education, a commitment Dr. Jill Biden reiterated during the campaign. It is one of the few cabinet positions in which a more progressive candidate could serve. The perspective that a public-school teacher, and perhaps a person of color, would bring to the job means a likely focus on educational equity throughout the entire education experience, but particularly as the Department looks to support safely reopening schools and conducting high-quality learning in virtual environments. Similarly, a stronger Office for Civil Rights is expected to emerge in the Biden Administration, which will focus not just to ensure equal access to education, but to guarantee equal access to a high-quality and affordable education.
Democratic control of the White House and the continued pandemic also will force a reevaluation of workforce, career training, and labor and employment policies by Democratic lawmakers. The Biden Administration will support leaning on America's community colleges to help train workers for jobs of the future and set up a regulatory framework that protects and supports those jobs. Senate Republicans will work with the administration and House Democrats to advance bipartisan solutions to help move the country out of a recession; however, issues related to worker classification, unionization, and collective bargaining will be a non-starter for Senate Republicans. While the Biden Administration will use unilateral executive action to reverse many of the Trump Administration's immigration policies, President-elect Biden will need to make considerable concessions to pass comprehensive immigration reform through the Senate.
Child Care & Early Learning
With COVID-19 pushing the child care sector to the brink of collapse, child care policy has garnered significant bipartisan attention in Congress. Earlier this year, Congress appropriated $3.5 billion in emergency funding for the Child Care and Development Block Grant (CCDBG) program. Lawmakers are continuing to push for a child care stabilization fund to keep child care centers afloat during the pandemic, as talks on the next stimulus package continue.
In the 117th Congress, Democrats will pursue an ambitious agenda for the child care and early learning sector as part of an economic recovery effort. The Democrats' agenda includes bolstering funding for Head Start and Early Head Start programs, providing access to universal pre-K, increasing compensation for early child care educators, enhancing child care tax credits, and expanding dependent care flexible spending accounts. Congress also will seek to reauthorize the CCDBG Act that expired in FY 2020, which presents opportunities for Congress to make reforms to improve high quality child care access for low-income families.
Further, Democrats will seek to reauthorize the Child Care Access Means Parents in School (CCAMPIS) program, a federal grant program for higher education institutions to provide child care services to low-income student parents. The blueprint legislation will likely be the CCAMPIS Reauthorization Act (H.R. 2632), introduced by Rep. Katherine Clark (D-MA). This bill was incorporated into the House Democrats' HEA reauthorization package last year.
Although it is unlikely the Democrats' agenda will gain significant traction in a Republican-controlled Senate, one aspect that may garner bipartisan support is the CCDBG Act reauthorization. Both parties have pointed to CCDBG as playing an instrumental role in creating access to child care during the pandemic. Further, there have been bipartisan efforts to increase funding for Head Start, and Sen. Susan Collins (R-ME) will continue to be a Republican champion on the issue. Beyond these issues, there will be gridlock on efforts to increase compensation for child care workers to a minimum or living wage and authorizing universal child care.
Throughout his campaign, President-elect Biden outlined his priorities to include expanding access to affordable child care and providing universal preschool. President-elect Biden is likely to propose such plans in his budget requests to Congress, which, for the most part, will be dead on arrival in the Senate. President-elect Biden also will look to invest in improving compensation for early child care educators and focus on enhancing their ability to join a union and collectively bargain for better wages, benefits, and working conditions. He also has pledged to create an additional 1.5 million new early education jobs. Additionally, President-elect Biden's plan includes tax credits to encourage employers to construct child care facilities and to offer tax credits to low-income families to pay for child care.
The impact of the COVID-19 pandemic on K-12 education cannot be understated. The 2020-21 school year forced school districts to make difficult and unprecedented decisions about how to keep students safe and healthy, whether to reopen schools, how to effectively utilize online learning, and how to address learning loss following a challenging rollout of online education in the spring semester. While the Trump Administration took a hands-off approach to K-12 education, preferring to allow state and local officials to make decisions about the education systems in their communities, the Biden Administration is likely to be more hands-on and prioritize K-12 education as a major policy.
On the campaign trail, President-elect Biden often emphasized the role of teachers in providing a quality education to students and the importance of public K-12 education. He previously pledged to nominate a former public-school teacher as the Secretary of Education and has said he wants a "teacher-oriented" Department of Education. He has talked at length about his plans to provide more support for teachers, including investing in educator mentoring and leadership opportunities, increasing teacher pay, and promoting diversity in the educator workforce. The president-elect also plans to address inequity issues in the K-12 public school system by tripling funding for Title I, creating a competitive grant program to build more innovative schools in low-income communities and communities of color, and reinstating the Obama Administration guidance on pursuing desegregation strategies and diversification of school populations. In addition, he has discussed the importance of investing in social and emotional learning, as well as increasing the number of mental health professionals in schools to help students grow into physically and emotionally healthy adults while also allowing educators to focus on teaching.
Given that many of these priorities require congressional action, President-elect Biden will have to coordinate closely with Democrats in Congress, including House Education and Labor Committee Chairman Bobby Scott (D-VA) and Senate Health, Education, Labor, and Pensions Committee Ranking Member Patty Murray (D-WA), to achieve these goals, though the Republican-controlled Senate may present challenges to the president-elect's plans to increase funding for K-12 education. A key test will be whether they are able to agree on additional COVID-19-related funding for K-12 through the Education Stabilization Fund created under the CARES Act. Chairman Scott will continue working to advance his school infrastructure legislation, the Rebuild America's Schools Act (H.R. 865/S. 266), which was included in the House-passed infrastructure package but would need to garner additional Republican support to pass both chambers.
Although the current Elementary and Secondary Education Act (ESEA) authorization, the Every Student Succeeds Act, expires after the 2020-21 school year, Congress is not expected to take significant action on an ESEA reauthorization bill any time soon, particularly given the long overdue HEA reauthorization will take priority in the 117th Congress.
The COVID-19 pandemic has changed K-12 and higher education dramatically and will have a long-term impact on the US education system, particularly as it relates to the rise of digital learning. The pandemic forced students and teachers, some of whom were resistant to using online learning tools, to transition quickly to an online learning environment. In many instances, this transition to digital learning was not a smooth one and revealed serious disparities in students' access to broadband, availability of hardware and software needed for online learning, and privacy risks inherent in the use of education technology. The Biden Administration and the 117th Congress will continue to grapple with how to address these gaps and look to incentivize the use of digital education.
In the K-12 setting, the Biden Administration and Democrats in the House will prioritize additional funding for the Federal Communications Commission's (FCC) E-Rate program, which provides school districts and libraries with internet access and telecommunications equipment and services. Although Republicans support the E-Rate program, they have disagreed with Democrats about whether to funnel COVID-19 relief funding to the program or create a separate pilot program to help school districts with immediate pandemic-related needs. In addition, Democrats will look to incentivize digital learning through the Student Success and Academic Enrichment Grant (SSAEG) program under ESSA, given that improving the use of technology in K-12 classrooms is an eligible use of funding under the program. Congress has increased funding for the SSAEG program each year since its initial year of funding in FY 2017 but has yet to provide the full $1.65 billion as authorized in ESSA. Democrats will continue to fight to increase funding for the program in the 117th Congress, while Republicans will be more inclined to provide level funding. Likely Federal Trade Commission (FTC) Chair Rebecca Kelly Slaughter said she supports an FTC study on education technology, particularly considering the increased use of digital learning products during the pandemic.
In higher education, the Biden Administration will be tasked with implementing the final accreditation rule promulgated under the Trump Administration, which included the Distance Education and Innovation rule that goes into effect in July 2021. The rule updates the definition of "distance education" to account for new technologies that facilitate online learning, as well as sets out the parameters for how universities can offer innovative forms of education, such as competency-based education (CBE). CBE is likely to be part of the HEA reauthorization debate, particularly in light of Democrats' concerns about the quality of CBE programs. While Democrats would prefer to institute a CBE demonstration pilot with quality assurance measures, Republicans are less supportive of this concept and are concerned that additional quality assurance measures could lead to administrative burdens.
Student data privacy will continue to be a topic of discussion, though it is unclear whether Congress will prioritize legislation to address the tensions that exist between the Children's Online Privacy Protection Act (COPPA), which imposes restrictions on online services directed at children under 13; and the Family Educational Rights and Privacy Act, which governs the use of student data in education settings. Democrats in both chambers will advocate for legislation to raise the COPPA age threshold to 16, which has bipartisan support, but movement on this issue will depend on whether Congress makes progress on a national consumer privacy bill, particularly in light of the Democrats' robust policy agenda.
Student Loans and College Affordability
President-elect Biden has an ambitious agenda on federal student aid policy reforms. In a divided Congress, there is likely to be modest changes in areas where bipartisan agreement can be reached. More generous funding for federal student aid programs may be realized through the budget process, in addition to a reliance upon the regulatory system for oversight of private lenders and servicers on student loan matters.
With Democrats holding the House, we expect the administration to make student loan debt a priority, particularly considering the pandemic. In his first 100 days, the president-elect may seek to cancel $10,000 in student debt for all borrowers to help families weather this crisis, as stated during the campaign, but Democratic losses in Congress make this less of a reality. Republicans will continue to push back on broad debt cancellation proposals (e.g., the Senate resolution led by Minority Leader Chuck Schumer (D-NY) and Elizabeth Warren (D-MA) urging the president to cancel $50,000 for federal student loan borrowers), but may be open to targeted forgiveness to borrowers in distress if the economic downturn continues.
President-elect Biden also wants to simplify repayment through enrollment of borrowers into automatic income-based repayment (IBR), which would cap repayment at five percent of discretionary income and provide forgiveness of debt after 20 years. Under the plan, individuals with income below $25,000 would not be required to make payments. Additionally, President-elect Biden and congressional Democrats have outlined plans to modernize the Public Service Loan Forgiveness program to make it easier to enroll and forgive up to $10,000 in student debt per year for up to five years. There is bipartisan will on the Hill to enact solutions to improve both programs for borrowers. On the regulatory front, the administration is likely to restore Obama-era regulations, including the borrower defense rule, and generally provide more oversight to protect student borrowers.
President-elect Biden will propose investments in other federal student aid programs, including doubling the Pell Grant, expanding Pell eligibility to undocumented students and the previously incarcerated, and boosting funding for TRIO, GEAR Up, and wraparound support services. The President-elect also plans to establish a new program to support under-resourced four-year institutions serving a high number of Pell-eligible students.
Importantly, President-elect Biden also will advance policies to get more students to and through college. Under the Obama Administration, he spearheaded the College Promise initiative and reiterated support during the campaign for providing free tuition to students at public institutions whose families make under $125,000 per year. Community college tuition would be free for all students under the plan. In addition, the president-elect wants to provide additional assistance to low-income students. Similar to proposals included in House Democrats' College Affordability Act (CAA) (H.R. 4674), he supports the creation of an emergency grant program for students with unanticipated financial challenges.
Much of the work to tackle student debt and enhance and broaden federal student aid programs will be addressed through HEA reauthorization, which the new Congress is expected to turn towards early in the first session. While Democrats will have leverage to increase funding and support for key priorities, particularly building upon existing programs, new large-scale proposals are unlikely to win the backing of Senate Republicans. While the CAA may be the starting point for House Democrats on HEA, a new Senate HELP Committee Chairman will set markers for the chamber's compromise on a negotiated bill.
Accountability for institutions of higher education will remain a top priority of Democrats under the Biden Administration and 117th Congress. While some policy proposals will receive bipartisan support from Republicans in the Senate, others may be met with resistance, including Democrats' plans to rein in for-profit institutions, which President-elect Biden said are "often predatory" and charge higher costs for lower quality education. In his campaign platform, the president-elect said he plans to reinstate the Obama Administration's 2016 version of the Borrower Defense to Repayment (BDR) rule, which offers students federal loan relief if their school acts in a fraudulent, misleading, or illegal manner. The Trump Administration rescinded the previous rule and issued its own BDR rule in September 2019, which Democrats have criticized for weakening student protections compared to the initial rule. The Biden Administration also may attempt to reinstate the Gainful Employment rule the Trump Administration repealed in 2019, which required career training programs to demonstrate they are preparing students to be gainfully employed after graduation.
One major target of Democrats in recent years is the 90/10 rule, which requires for-profit institutions to derive at least 10 percent of their revenue from sources other than federal financial aid. Democrats, including President-elect Biden, and veterans' organizations have called for the elimination of the loophole excluding military and veterans' education benefits towards the cap because it incentivizes for-profits to market aggressively to veterans and service members. The proposal has bipartisan support on the Hill. Other advocates have called on Congress to modify the revenue breakdown to 85/15, which was the initial ratio until 1998. House Democrats included both policy changes in their HEA reauthorization bill in the 116th Congress - the CAA. Democrats will continue to push for changes to the rule in the next Congress.
Congressional Democrats also will consider how to hold universities accountable as part of HEA reauthorization, including through risk-sharing provisions, such as CAA's proposal of an on-time loan repayment metric for accountability purposes, to ensure students graduate without accumulating debts they are unable to pay back. Republicans have been open to the idea of including risk-sharing provisions in HEA reauthorization in the past, but both parties disagree about the most effective way to hold institutions accountable. Another area of bipartisan agreement may be the College Transparency Act (H.R. 1766/S. 800), which would repeal the student unit record ban and allow the Department of Education to collect data about students' progress through the education system. CAA included the text of the bill, which has over 230 co-sponsors in the House and 36 co-sponsors in the Senate. House Education and Labor Committee Ranking Member Virginia Foxx (R-NC) is a long-time critic of the student unit record due to concerns over privacy, but the broad bipartisan support of the bill is likely to overrule her concerns in a Democratic-controlled House.
Campus safety issues will remain a priority for Democrats in the White House and 117th Congress. The administration and Congress are expected to work to dismantle the Trump Administration's controversial final Title IX regulation, issued on May 6, which dictates how K-12 schools and institutions of higher education receiving federal funding must address sexual harassment and assault issues. The final rule replaced the Obama Administration's 2011 Dear Colleague letter, which the Trump Administration criticized for not carrying the full force of law and for denying due process protections to students accused of sexual harassment. Despite several lawsuits seeking to delay the implementation of the Title IX rule, the final rule went into effect on August 14, prior to the start of the 2020-21 school year.
While House Democrats in the 116th Congress were focused on stopping the Trump Administration from implementing its final Title IX regulation, we expect they will turn their attention to working with the Biden Administration to repeal the regulation and replace it with a rule that more closely mirrors the previous protections for sexual assault survivors in the 2011 Dear Colleague letter. House Democrats may look at the Congressional Review Act (CRA) as a potential way to achieve this goal. Yet, Democrats are unlikely to use this tool since Senate Republicans would not consider approving a resolution of disapproval. In addition, it may not be the most effective instrument because the Department is not allowed to reissue the rule in "substantially the same form" (a term the CRA does not define) once Congress repeals a final rule through a CRA joint resolution of disapproval.
In the Senate, Senate HELP Committee Ranking Member Patty Murray (D-WA) will remain a champion for campus safety issues, including campus sexual assault and anti-hazing efforts. Policy provisions related to anti-hazing have generally been bipartisan in the past and will continue to be in the future, including legislation to support comprehensive approaches to institutional transparency and student accountability related to hazing. These types of provisions are likely to be included in HEA reauthorization next Congress.
As various states consider or have passed legislation addressing name, image, and likeness (NIL) of student-athletes, congressional leaders will feel considerable pressure to work on a federal solution in the 117th Congress. In September 2019, California Governor Gavin Newsom (D) signed the Fair Pay to Play Act (SB 206) into law, making California the first state to allow student-athletes to receive compensation for use of their NIL (starting in 2023). Since the law's enactment, Colorado and Florida also have passed NIL legislation with effective dates of January 1, 2023 and July 1, 2021, respectively. Over 20 other states, including Georgia, Minnesota, New York, Oklahoma, South Carolina, and Virginia, have or intend to introduce similar bills.
Bipartisan support on the NIL issue will remain in the 117th Congress. In the 116th Congress, the House built bipartisan momentum to address NIL with the Student-Athlete Equity Act (H.R. 1804), introduced by Reps. Mark Walker (R-NC) and Cedric Richmond (D-LA). The bill would prohibit qualified amateur sports organizations from banning or substantially restricting the use of student-athletes' NIL. This legislation likely will be the blueprint for next year's House bill. With Rep. Walker retiring, one of the Republican bill cosponsors (e.g., Reps. Matt Gaetz (R-FL) or Dan Meuser (R-PA)) will assume Rep. Walker's lead role. At the end of September, Reps. Anthony Gonzalez (R-OH) and Emanuel Cleaver (D-MO) introduced the Student Athlete Level Playing Field Act (H.R. 8382), which would create a national framework to allow student athletes to capitalize from their NIL. The bill includes a number of principles proposed by the National Collegiate Athletic Association (NCAA), including state preemption. While the NCAA did not endorse the bill, it released a statement noting its appreciation for the sponsors' collaboration and stated its intent to work with them on a federal solution.
The Senate also has demonstrated bipartisan support on this issue, including members of the Senate Commerce, Science, and Transportation Committee who held several fact-finding hearings. While a Senate companion bill of the Student Athlete Level Playing Field Act has not yet been introduced, Sens. Richard Blumenthal (D-CT) and Jerry Moran (R-KS), leaders of the Subcommittee on Manufacturing, Trade, and Consumer Protection, are expected to do so. Another measure that may be considered during negotiations is the Fairness in Collegiate Athletics Act (S. 4004), introduced by Sen. Marco Rubio (R-FL), which was considerably informed by three of the five power conferences (the Atlantic Coast Conference, Southeastern Conference, and Big 12). Recently, several Democratic Senators, led by Sens. Corey Booker (D-NJ) and Richard Blumenthal (D-CT), introduced a framework for a College Athletes Bill of Rights, which will aim to ensure "fair and equitable compensation, enforceable health and safety standards, and improved educational opportunities for all college athletes." The bill is expected to be introduced by the end of the year and will set the marker for Democrats in the chamber next Congress.
The robust state and federal legislative activity on the issue has forced the NCAA to act. In May 2019, the NCAA established a working group to create overarching principles on the treatment of student-athletes' NIL. Nearly a year later, the NCAA released the Intercollegiate Amateur Sports Act of 2020. The proposal would: (1) grant antitrust protections to collegiate sports associations; (2) allow the NCAA to establish rules for student-athletes; and (3) override state laws that address use of NIL. The NCAA intends to finalize the proposal by November 2020 and vote on it by January 2021. If passed, the proposal will take effect on June 30, 2021. Despite the NCAA's actions, the association will still urge Congress to enact a federal solution to mitigate confusion from a patchwork of state laws. The NCAA will push for federal adoption of its proposal; however, it will be met with strong bipartisan criticism.
Florida's law, which takes effect on July 1, 2021, will be a motivating factor for Congress to enact a federal solution on the treatment of student-athletes. Universities have articulated that Florida's approach will significantly change the dynamics of collegiate athletics nationwide, including advantaging certain institutions in their recruiting efforts. Despite these serious concerns, there is no guarantee Congress will pass a bill before the law is enacted.
Supporting federal funding for research granting agencies will be a priority under President-elect Biden's budget proposals. Democrats will seek to make gains in research areas where, in their view, Republicans underfunded or sought to reduce investments, including climate change and clean energy. President-elect Biden outlined in the Biden-Sanders Unity Task Force Recommendations a plan to establish a new cross agency research and development Advanced Research Projects Agency to focus on climate change (ARPA-C). The plan is part of a broader effort to strengthen R&D innovation. Additionally, in the 2020 Democratic Party Platform, Democrats outline support for increasing investments in aerospace, artificial intelligence, advanced materials, biotechnology, clean vehicles, and medical research. The Biden Administration also will build on the Obama-era Cancer Moonshot initiative to find new cancer cures and treatments. Republicans are likely to support increasing investments in some research areas, such as cancer, but are unlikely to support new, large-scale federal programs that need congressional authorization.
During the pandemic, Congress provided significant investments through emergency appropriations to support research. While Democrats will push for further funding for research through the regular appropriations process and future COVID-19 legislation, Republicans will push back on further emergency spending after significant investments were made in prior relief packages. Another factor that will influence the direction of federal research investments is the retirement of House Appropriations Committee Chairwoman Nita Lowey (D-NY). Among those competing for the gavel, Reps. Rosa DeLauro (D-CT), Marcy Kaptur (D-OH), and Debbie Wasserman Schultz (D-FL) each have different subcommittee leadership experience and funding priorities. For example, if Rep. DeLauro (Chair, Subcommittee on Labor, Health and Human Services, Education and Related Services) takes the gavel, there will be a greater committee-wide focus on research among those Departments.
Under the Biden Administration, Democrats will seek to increase diversity in research through investments in women innovators and innovators of color. President-elect Biden has outlined plans to increase investments in research by $10 billion at Historically Black Colleges and Universities (HBCUs), Tribal Colleges and Universities (TCUs), and Minority Serving Institutions (MSIs). Such an investment would help create centers of excellence to carry out research in the fields of climate change, globalization, inequality, health disparities, and cancer. President-elect Biden also will propose priority funding streams for agencies to provide grants and contracts for HBCUs and MSIs, while requiring that, for federal grants, universities with endowments over $1 billion enter subcontracting partnerships with a HBCU, TCU, or MSI. Some of these efforts to support investments in minority-serving institutions are likely to garner bipartisan support in Congress, though topline research spending may be curbed in a Republican-controlled Senate.
Staffing levels in federal research-granting offices and the federal research enterprise priorities are expected to depart considerably from the Trump Administration. Over the past four years, the administration targeted research agencies for reorganization and consolidation to reduce the federal workforce and decentralize research offices based in the Washington, DC area. Under the new administration, such efforts and large-scale reorganization will be halted and reversed.
Lawmakers in both parties will continue to engage in oversight and legislative activities to address foreign threats to taxpayer-funded research. In the Senate, legislation that has garnered significant bipartisan support will likely be reintroduced, including Sen. Rob Portman's (R-OH) Safeguarding American Innovation Act (S. 3997). The legislation has support from key Senate Democrats, including Sen. Tom Carper (D-DE), who is Sen. Portman's counterpart as ranking member of the Permanent Subcommittee on Investigations under the Senate Homeland Security and Governmental Affairs Committee. Yet, the legislation has been criticized heavily by the academic community and House Democrats may oppose it because they align closely with certain higher education associations.
Similar to the 116th Congress, lawmakers will use various legislative vehicles to implement their agenda, including the annual appropriations bills, the National Defense Authorization Act (NDAA), and potential COVID-19 relief packages. For example, language from the Securing American Science and Technology Act (H.R. 3038), led by Rep. Mikie Sherrill (D-NJ), was incorporated into the FY 2020 NDAA.
In the 117th Congress, workforce policy will become a top priority for Congress and the White House. The COVID-19 pandemic has left as many as 12.6 million individuals without jobs, with young workers (16-24 years old) hit the hardest. Additionally, the pandemic has shined a light on an array of workforce disparities and, as a result, increased attention to these issues as lawmakers try to help get Americans back to work. The Biden Administration is expected to push for significant investments in workforce training and apprenticeships. President-elect Biden also will work closely with Congress to innovate education and workforce programs to promote job creation and train the future workforce.
With his close relationship to the labor community, the president-elect will collaborate with organized labor as part of his administration's efforts to promote a more diverse and inclusive workforce. The president-elect intends to expand career pathways and job training programs, particularly for underrepresented groups, by investing $5 billion in graduate programs in teaching, healthcare, and STEM. The administration also will develop career pipelines and internships in major research agencies, such as the Department of Energy National Laboratories, the National Institutes of Health, the National Science Foundation (NSF), and the Department of Defense.
With President-elect Biden's meaningful involvement in the Obama-era Trade Adjustment Assistance Community College and Career Training Grant (TAACCCT) program, and Dr. Jill Biden's career as a community college professor, community colleges will play a central role in the Administration's efforts to retrain the workforce and address unemployment. During the campaign, President-elect Biden outlined plans to invest $50 billion in workforce training programs to support community college business partnerships and apprenticeships. Additionally, he plans to expand career and technical education (CTE) and high-quality job training programs with formal worker representation in program development, including pre-apprenticeship opportunities and registered apprenticeships.
In the 117th Congress, lawmakers will work with the Biden Administration to expand workforce investments and increase access to these programs for all Americans. For example, House Education and Labor Committee Chairman Bobby Scott (D-VA) and Senate HELP Committee Ranking Member Patty Murray (D-WA) will prioritize the Relaunching America's Workforce Act (H.R. 6646/S. 3659), which has been endorsed by several stakeholder organizations. The bill would invest $15 billion in workforce training infrastructure and CTE, and would authorize funding to improve skills to re-enter the workforce. The measure also includes the bipartisan Assisting Community Colleges in Educating Skilled Students (ACCESS) to Careers Act (S. 3273), which establishes a community college and career training grant program that builds on the TAACCCT program.
In a divided Congress, bipartisan measures are likely to gain more traction. Some of the bipartisan measures that may be markers in the 117th Congress include: (1) the Skills Renewal Act (H.R. 7032/S. 3779), to establish a tax credit for skills training for those unemployed as a result of the COVID-19 pandemic; (2) the JOBS Act (H.R. 3297/S. 839), to expand Pell Grant eligibility for short-term programs; and (3) the Advanced Technological Manufacturing Act (S. 3704), to reauthorize and modernize the NSF Advanced Technological Education (ATE) program. Republicans will continue to focus on reforming existing programs to accommodate innovative workforce and high-quality skills training. For example, Sen. Mike Braun (R-IN) and Rep. Jim Banks (R-IN) likely will re-introduce the Pell Flexibility Act (H.R. 2161/S. 1072), to allow students to use Pell Grants for skills-based programs.
Stakeholders have urged lawmakers to restore funding for several federal workforce programs, including CTE Basic State Grants, Title I and Adult Education and Family Literacy programs under the Workforce Innovation and Opportunity Act, and the NSF ATE program. Under a Democratic administration and divided Congress, these programs are likely to see a funding boost, despite pressure to rein in spending by conservatives in the post-COVID-19 fiscal environment. If Congress reauthorizes the HEA, elements of the JOBS Act and the ACCESS to Careers Act noted above likely will be included in the package.
Labor issues will be a central part of the Biden Administration's policy agenda. However, most of the administration's labor agenda will be a non-starter with Senate Republicans. The issue of worker classification will be a priority of the Biden Administration, given the patchwork of relevant state laws, including California's enactment of Assembly Bill 5 in 2019 that classifies gig economy workers as employees; yet, the passage of Proposition 22 there complicates the issue. Still, the Department of Labor may pursue regulatory action to classify gig economy workers as employees, which differs from that of the Trump Administration. The current Department of Labor has taken regulatory action on the issue, including issuing an Opinion Letter (Fair Labor Standards Act (FLSA) 2019-6) on worker classification in the gig economy. In September, the administration began its rulemaking to clarify whether gig economy workers are employees or independent contractors under federal minimum wage and overtime law governed by FLSA based on an "economic realities" test.
The Biden Administration also is likely to increase relevant enforcement efforts within the National Labor Relations Board, Equal Employment Opportunity Commission, Internal Revenue Service, Department of Justice, and other state and local labor agencies. In addition, the administration may create an interagency worker classification taskforce to share such enforcement information with state and federal agencies.
However, the Biden Administration will need Congress to enact its full worker classification agenda. These priorities may include creating a federal standard for worker classification modeled after the "ABC" test in California, increasing penalties for employers that misclassify workers, and increasing funding for labor enforcement agencies to hire additional worker classification investigators. A worker is considered an employee under the ABC test, unless the hiring entity can establish: (a) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract and in fact; (b) the worker performs work that is outside the usual course of the hiring entity's business; and (c) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. The administration also may turn to Congress to include worker misclassification as an independent violation of FLSA. House Democrats will push this robust agenda and use as a blueprint the Protecting the Right to Organize (PRO) Act (H.R. 2474/S. 1306), a fairly partisan bill introduced in the 116th Congress with the support of 41 of the 45 Senate Democrats, including Vice President-elect Kamala Harris, and 218 of the 232 House Democrats.
If the PRO Act is the basis for any House bill that passes, it will likely be dead on arrival in the Senate. Many Republican Senators support the classification of gig economy workers as independent contractors, including current Majority Whip John Thune (R-SD) who introduced the New Economy Works to Guarantee Independence and Growth (NEW GIG) Act of 2019 ( S. 700). If there should be legislative momentum on the gig economy worker issue, it may be on the issue of portable benefits, which has garnered bipartisan support. Senators such as Mark Warner (D-VA), Todd Young (R-IN), John Hoven (R-ND), Ben Sasse (R-NE), Michael Bennet (D-CO), and Angus King (I-ME) have introduced the Portable Benefits for Independent Workers Pilot Program Act (S. 541).
In addition to a worker classification agenda, there will be considerable efforts by the White House and Democrats in Congress to focus on unionization and collective bargaining. The Protecting Workers' Freedom to Organize Act (S. 664), the Workplace Democracy Act (S. 2810), and the PRO Act will most likely be the framework. The agenda will be robust and may include efforts to expand the categories of workers who can unionize (including gig economy workers), ban all "right-to-work" state laws, and expand penalties for labor law violations and instances when an employer refuses to negotiate in good faith with a union. Democrats also may amend the joint employer rules to codify the Browning-Ferris standard and require the joint employer to engage in collective bargaining. In March 2020, the Trump Administration's narrowed joint employer rule took effect, which was a victory for Republicans and a favorable move for companies that have a franchise business model or a business model that relies considerably on third-party contractors. The rule was immediately challenged in the courts by attorneys general of 17 states and the District of Columbia asserting it removed critical worker protections. In September 2020, the US District Court for the Middle of North Carolina agreed and concluded the rule to be "arbitrary and capricious" and conflicted with the FLSA.
While most of the unionization and collective bargaining agenda will require legislative action, the Biden Administration may have opportunities to use unilateral regulatory action. For example, the Biden Administration could reinstate the Obama Administration's "persuader rule," which would mandate public disclosure of instances when employers hire consultants to counter workers' union organization efforts.
In his first 100 days, President-elect Biden will use unilateral executive action to reverse many of the Trump Administration's controversial immigration policies, including President Trump's efforts to end the Deferred Action for Childhood Arrivals (DACA) program, border enforcement, and various travel bans. The president-elect also is expected to modernize the immigration system through executive action.
After the Supreme Court's ruling this summer that the Trump Administration improperly ended the DACA program, the United States Citizenship and Immigration Service has rejected and returned all initial DACA requests since July and issued a one-year renewal term, rather than two-year renewals. This action will prompt the Biden Administration to prioritize reinstating the DACA program and start the application approval process. Further, the Biden Administration will look to end the prolonged detention of undocumented immigrants, particularly children, and reinvest in a case management program.
The president-elect also is expected to rescind several travel ban policies, including banning entry into the US of foreign nationals from certain Muslim-majority countries, the so-called "Muslim Ban." The executive agenda will seek to rescind Presidential Proclamation 10014, banning entry into the US of individuals traveling on immigrant visas, and Presidential Proclamation 10052, banning entry into the US of individuals traveling on nonimmigrant employment visas, including H-1B, L-1A, L-1B, and certain J-1 visa categories. Both proclamations were issued under the premise of protecting the US labor market during the period of economic recovery following the COVID-19 pandemic.
Similarly, from January to June 2020, President Trump issued executive actions suspending entry into the country to a broad swath of foreign nationals based on alleged health and economic risks due to the global coronavirus pandemic. The travel ban list consists of China, Iran, the European Union, the United Kingdom, the Republic of Ireland, and Brazil. President-elect Biden will work to systematically remove bans from areas where data indicate a minimized threat of risk from the virus. The Biden Administration also is likely to expand the number of refugees admitted to the US annually. During the Trump Administration, the figure went as low as 18,000, and President-elect Biden may admit as many as 125,000 refugees annually.
In addition to unilateral executive actions, President-elect Biden will advocate for Congress to pass sweeping immigration reform that prioritizes pathways to citizenship for the more than 10 million undocumented immigrants currently living in the country. The agenda also will include a focus on seasonal workers in the agricultural sector, revisions to the temporary work visa system, increased immigrant visas in employment-based categories with flexibility to decrease the number in the event of high US unemployment, and temporary visas to enable spouses and children to join relatives in the US immediately while awaiting immigrant visas.
Overall, it will be challenging for President-elect Biden to push through a comprehensive agenda in the Senate, particularly on the issue of a pathway to citizenship for certain undocumented immigrants. In the Senate, there is likely to be a bipartisan willingness to address the DACA program, given bipartisan support for the Dream Act (H.R. 2820/S. 874), the proposed legislation to codify DACA and create a pathway to citizenship for DACA recipients, their parents, and Temporary Protected Status holders. Both Sens. Dick Durbin (D-IL) and Lindsey Graham (R-SC) have been the leads on the legislation for multiple congressional sessions. In addition, Sen. Christopher Coons (D-DE) will look to push the National Origin-Based Antidiscrimination for Nonimmigrants (NO BAN) Act (H.R. 2214/S. 1123), to reverse the so-called "Muslim Ban" and prohibit immigration policy to discriminate on the basis of national origin. While the Biden Administration likely will reverse the ban itself, the administration will need congressional authority to prohibit discrimination based on national origin.
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© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.