News
November 9, 2020

Post-Election Analysis 2020: Education & Workforce

Advisory

*Updated January 6, 2021

Key Takeaways

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  • The priorities of the Democratic-controlled House in the 116th Congress provide a blueprint for the policies and priorities likely to take precedence in the new Democratic-controlled 117th Congress. Top congressional priorities will include additional COVID-19 relief across the education spectrum, updating the Higher Education Act (HEA), and prioritizing policies that address inequities in the education system.
  • The length and scope of the pandemic will impact movement on the long-awaited legislative overhaul in higher education but may lead to more transformative discussions and innovative policy changes surrounding our education and workforce systems and reimagining how they better align.
  • Democrats will prioritize workforce and labor issues, including workforce training, worker classification, unionization, and collective bargaining. The robust agenda will look to supersede state laws that Democrats believe fail to provide worker protections. In addition, comprehensive immigration reform will be part of these workforce conversations and a top priority of Democrats in the 117th Congress.

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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

Overview

Education and workforce policies are expected to get a major facelift under President-elect Biden and a Democratic Congress. Before the coronavirus pandemic, Democratic lawmakers began to look at education and workforce policy through an equity lens. Yet, the pandemic has magnified the inequities that exist from cradle to career, with President-elect Biden and congressional Democrats sounding the alarm since last March. Given their clout in both chambers, Democratic lawmakers plan to have more transformative conversations on educational and workforce inequities to inform their oversight, funding, and policy agenda, but their approach to addressing these issues may cause considerable dissention within the caucus. While some Democrats intend to aggressively push long-term, structural measures in another anticipated coronavirus relief package, other Democrats will focus on major reauthorizations and other legislative vehicles to address longer-term measures. This will create a tug-of-war on how to address the lasting policy challenges of higher education, getting America back to work, and ensuring worker protections.

A Democratic-led Congress will pick up its work from the 116th Congress on diversity, equity, and inclusion, and HEA reauthorization. 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 was 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 clear if lawmakers will wait to pass a massive HEA overhaul to enact such changes. House Democrats will dust off the College Affordability Act (H.R. 4674), which was reported out of the House Education and Labor Committee in late 2019 but failed to advance to the floor due to the pandemic. Democratic leaders will look to make important updates to the massive overhaul following COVID-19, but the bill is expected to serve as a blueprint for the way forward. Given the composition of the Senate, who becomes ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee likely will impact how quickly HEA reauthorization is addressed. Further, with the Every Student Succeeds Act (ESSA) expiring in FY 2020, there will be calls for its reauthorization, though Congress will prioritize early learning and student privacy in the 117th Congress.

As part of his policy agenda, President-elect Biden pledged to appoint a public school teacher to the role of Secretary of Education, a commitment Dr. Jill Biden reiterated. In December, President-elect Biden followed through on this promise by nominating Connecticut Education Commissioner Miguel Cardona for Secretary of Education. Dr. Cardona previously taught as an adjunct professor at the University of Connecticut before serving as Assistant Superintendent for teaching and learning at the Connecticut Department of Education. Dr. Cardona also served as a public school educator for two decades, first as an elementary school teacher and later as a principal for 10 years. Dr. Cardona was endorsed by the Congressional Hispanic Caucus, many K-12 groups, and teachers' unions. He is expected to make bilingual education a priority, as he did while serving as state education commissioner. As a Puerto Rican leader, Dr. Cardona also will 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 of Civil Rights will emerge under his leadership, which will focus not just to ensure equal access to education, but to guarantee equal access to a high-quality and affordable education.

A new Democratic Congress and the pandemic 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 will set up a regulatory framework that protects and supports those jobs. This includes quickly reversing Trump-era immigration policies and instead working to implement comprehensive reforms to modernize the immigration system. Child care is another area that will get attention early, as Democrats look to sure up the sector and help provide a pathway back to work for many parents.

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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 recently. Last Spring, Congress appropriated $3.5 billion in emergency funding for the Child Care and Development Block Grant (CCDBG) program in the CARES Act. It provided an additional $10 billion in emergency funding for the child care sector through the year-end COVID-19 relief package. Despite this recent funding to support child care during the pandemic, Democrats will continue to push for additional funding for the child care sector in another relief package this Congress. While the two previous infusions for the sector were provided through CCDBG, it is possible the next effort could create a separate stabilization fund, similar to other education pots of money under CARES. Whatever the mechanism, advocates are seeking up to $40 billion more to stabilize the sector.

In a Democratic-controlled Congress, Democrats will pursue an ambitious policy 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 will also 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 push for reauthorizing the Child Care Access Means Parents in School (CCAMPIS) program, which provides federal grants 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 last Congress ‒ the College Affordability Act (H.R. 4674).

In the 117th Congress, standalone bills from the 116th Congress, such as the Child Care for Working Families Act (H.R. 1364/S. 568), introduced by education committee leaders Rep. Bobby Scott (D-VA) and Sen. Patty Murray (D-WA), are likely to be the basis of such discussions but may be partisan in nature. One aspect that may garner bipartisan support is the CCDBG Act reauthorization, as 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. Beyond these issues, Democrats will push for legislation to increase compensation for child care workers to a minimum or living wage and authorize universal pre-K.

President-elect Biden's child care plan seeks to expand access to affordable child care and universal preschool, in addition to increasing the pipeline of child care providers—all of which will win support from congressional Democrats. Specifically, the President-elect will propose increased funding for child care and early education programs in his budget proposal. He intends to work with Congress to expand tax credits to offer low-and middle-income families up to $8,000 in tax credits to help pay for child care and sliding scale subsidies, as well as create tax credits to encourage employers to construct child care facilities. President-elect Biden also plans to increase quality child care options and work with states to expand Head Start and Early Head Start.

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K-12

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 generally 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 and a Democratic-controlled Congress are likely to be more hands-on. Democrats will prioritize K-12 education as a major policy and equity issue in the coming years. Although the year-end COVID-19 relief package provided an additional $54.3 billion for elementary and secondary schools congressional Democrats will ready a funding package for President-elect Biden to sign after he takes office that is likely to include additional dollars for K-12 through the Education Stabilization Fund.

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 fulfilled his pledge to nominate a former public-school teacher as the Secretary of Education with his nomination of Miguel Cardona, who is expected to lead a more "teacher-oriented" Department of Education. President-elect Biden 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 coordinate closely with Democrats in Congress, including House Education and Labor Committee Chairman Bobby Scott (D-VA) and likely chairman of the Senate HELP Committee Sen. Patty Murray (D-WA), to achieve these goals. Beyond increasing funds for K-12 education through the annual appropriations process, Congress is expected to consider legislation, such as the Rebuild America's Schools Act (H.R. 865/S. 266), to provide additional investments in school infrastructure. School infrastructure is one of Chairman Scott's priorities and was included in the broader House-passed infrastructure package in July. More recently, the President-elect also has tied improved infrastructure to reopening schools during the pandemic.

Congressional Democrats will begin preparations in the 117th Congress for reauthorization of the Elementary and Secondary Education Act (ESEA) given the current authorization, the Every Student Succeeds Act, expires after the 2020-21 school year. Despite its upcoming expiration, ESEA reauthorization is likely to take a backseat to the HEA reauthorization, which will be one of Democrats' top education priorities in the 117th Congress and is long overdue for reauthorization.

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Online Learning

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. Despite some additional investments in broadband infrastructure as part of the year-end package, 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, Democrats 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 additional funding to the program or create a separate pilot program to help school districts with immediate pandemic-related needs. In addition, Democrats will look for ways to incentivize digital learning through the Student Success and Academic Enrichment Grant (SSAEG) program under the 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. 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 learning and innovation rule that will go 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). Congressional Democrats are likely to address these issues through HEA reauthorization as a way to include additional quality assurance measures for CBE programs.

Student data privacy will continue to be a topic of discussion, though it is unclear whether Congress will prioritize legislation to address the continued 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 (FERPA), 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 online privacy bill, particularly in light of the Democrats' robust policy agenda.

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Student Loans and College Affordability

President-elect Biden and congressional Democrats campaigned on college affordability and student debt relief. Under the new Congress and administration, there will be a significant shift in federal student aid policy. In Congress, Democrats will pursue an ambitious agenda to provide widespread student loan forgiveness and relief, particularly considering COVID-19. They also will look to enhance existing bipartisan programs like the Pell Grant, Public Service Loan Forgiveness (PSLF), and Income-based Repayment (IBR) to help address college affordability and ease the burden of student loan debt.

In response to the pandemic, Congress provided relief to millions of federal student loan borrowers through an automatic pause on payments and interest. President Trump extended that relief through December 31, 2020 using an executive memorandum. In December, Secretary DeVos announced an additional extension on the student loan payment holiday through January 31, 2021. Congressional Democrats wanted additional relief (e.g., covering borrowers originally left out of the payment holiday, targeting frontline health care workers, and eliminating $10,000 in existing debt for federal and private borrowers) but were unable to persuade Senate Republicans to act. They introduced multiple loan forgiveness and relief proposals, including a Senate resolution led by Minority Leader Chuck Schumer (D-NY) and Sen. Elizabeth Warren (D-MA) urging the President to cancel $50,000 for federal student loan borrowers, that may be revisited after President-elect Biden takes office. Most stakeholders expect the incoming administration to immediately act on the expiring payment pause at the end of the month.

As part of the year-end COVID and spending package, Congress included a number of bipartisan higher education provisions related to college affordability, including former HELP Committee Chairman Lamar Alexander's (R-TN) long-awaited goal to simplify the Free Application for Federal Student Aid (FAFSA) form. In addition to reducing the number of questions from 108 to no more than 36, the agreement also will streamline data verification and simplify Pell Grant eligibility. FAFSA questions related to Selective Service and drug-related offenses will be removed. According to committee documents, these combined efforts should lead to an additional 555,000 students who qualify for Pell and an additional 1.7 million students who qualify for the maximum award each year. The package also removed the 26-year ban on Pell Grants for incarcerated students.

Beyond COVID-19 response, Democrats will pursue broader repayment reforms. President-elect Biden has proposed simplifying repayment plans through automatic IBR enrollment, which would cap repayment at five percent of borrowers' discretionary income and cancel remaining debt after 20 years. Individuals with income below $25,000 would not be required to make any payments under the plan. He also supports efforts to modernize the PSLF program and will look to make it easier to enroll and forgive up to $10,000 in student debt per year for up to five years.

While progressives have pushed for cancelling all student loan debt, such proposals are unlikely to be enacted in the midst of the pandemic. However, President-elect Biden said he would authorize up to $10,000 in immediate student debt relief per borrower to help families weather this crisis, which is expected to be considered in his first 100 days. President-elect Biden supports additional measures to increase protections for borrowers, including ending the practice of garnishing Social Security benefits for payment, ensuring student debt forgiven is not taxed, and allowing student loans to be discharged in bankruptcy. He also will take steps to crack down on misleading private institutions, lenders, and servicers by empowering the Consumer Financial Protection Bureau and moving towards the Obama Administration's regulatory framework for borrower defense to repayment.

As outlined in the Biden-Sanders Unity Task Force Recommendations, the President-elect will propose increases in other federal student aid programs, including doubling the Pell Grant, expanding Pell eligibility to undocumented students, and boosting funding for TRIO, Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR UP), and wraparound support services. He also plans to establish a new program to support under-resourced four-year institutions serving a high number of Pell-eligible students.

The Biden Administration also will focus efforts to reduce the overall cost of college by pursuing: (1) tuition-free college at public institutions for families who make under $125,000 per year; (2) free community college tuition for all students; and (3) lower tuition and increased support for HBCUs, MSIs, and TCUs.

Many of the priorities above will be addressed through the next HEA reauthorization, expected to build off House Democrats' College Affordability Act (H.R. 4674, 116th). While Democrats are likely to win approval for many of their popular student aid priorities, some of the more progressive priorities, such as tuition-free college and debt cancellation, will face an uphill battle in a narrowly controlled Senate. Additionally, the inclusion of the popular bipartisan higher education provisions in the year-end deal could make it more difficult to come to agreement on some of these other college affordability measures in the new Congress.

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Accountability

Accountability for institutions of higher education will remain a top priority of Democrats under the Biden Administration and 117th Congress. Democrats will continue to focus their attention on restricting for-profit institutions, which President-elect Biden has 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. Both of these policy changes were included in the House Democrats' HEA bill in the 116th Congress - the College Affordability Act (CAA) (H.R. 4674). Democrats are expected to push for changes to the rule this 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 (CTA) (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 legislature. CTA was left out of a bipartisan higher education package included in the year-end deal last month, but many expect it to get across the finish line this Congress.

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Campus Safety

Campus safety issues will remain a priority for Democrats in the White House and 117th Congress. The administration and Congress will 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 Democrats in the 116th Congress were focused on stopping the Trump Administration from implementing its final Title IX regulation, the 117th Congress will turn its 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. Democrats in Congress may look at the Congressional Review Act (CRA) as a potential way to achieve this goal. Yet, while it is possible the Title IX rule will fall within the window of time when the use of the CRA is applicable, 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. As such, the Biden Administration and the 117th Congress are expected to look for other ways to repeal and replace the rule, which may include making changes through the HEA reauthorization process.

In the Senate, Sen. Patty Murray (D-WA), the likely chairman of the HELP Committee, 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 are likely to 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 will likely be included in HEA reauthorization next Congress.

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Student-Athletes

As various states consider or have passed legislation addressing name, image, and likeness (NIL) of student-athletes, Democrats 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. Since the law's enactment, Colorado and Florida have also 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.

The robust state and federal legislative activity on the issue has forced the National Collegiate Athletic Association (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 proposed 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 said it would finalize the proposal by November 2020 but has yet to release the final proposal, which is supposed to get a vote by the end of this month. 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, although it will be met with strong bipartisan criticism.

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 will likely be the blueprint for next year's House bill. With Rep. Walker retiring, one of the Republican bill cosponsors (e.g., Reps. Matt Gaetz (FL) or Dan Meuser (PA)) will likely assume Rep. Walker's lead role. Additionally, with Rep. Richmond's departure from Congress to join the Biden Administration, Democrats will need to identify a new Democratic lead sponsor, as well. Last Fall, 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 the principles proposed by the NCAA, including state preemption. While the NCAA did not endorse the bill, the association 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. In December, Senator Roger Wicker (R-MS) introduced the College Athlete and Compensation Rights Act (S. 5003), which would allow student athletes to earn compensation for the use of their NIL and would establish a national framework for NIL compensation. Senator Wicker will work with other committee members, including Sens. Richard Blumenthal (D-CT) and Jerry Moran (R-KS), leaders of the Subcommittee on Manufacturing, Trade, and Consumer Protection, to finalize a national framework before the state laws begin taking effect.

Other key Senate Democrats have prioritized this issue as well, including Vice President-elect Kamala Harris and former presidential candidates Sens. Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), and Bernie Sanders (I-VT), and Senate Judiciary Committee member Sen. Mazie Hirono (D-HI). These Democrats released a framework for a new college athletes' bill of rights (S. 5062), which would guarantee equitable compensation and enforceable safety standards, as well as improve educational opportunities. The Senators will continue to play a key role on this issue in the new Congress.

The Supreme Court announced in December it will hear the appeals filed by the NCAA over an antitrust case decided by the US Court of Appeals for the Ninth Circuit in May 2020. At the Ninth Circuit, the three judge panel ruled the NCAA rules prohibiting compensation for athletes were anticompetitive. This ruling builds off of the O'Bannon v. NCAA case, which challenged NCAA rules that bar students from earning money off the use of their NIL. The Supreme Court's willingness to hear the case will likely spur congressional action to establish a national framework.

Additionally, 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 recruitment efforts. Despite these serious concerns, there is no guarantee Congress will pass a bill before the law in enacted.

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Research

Supporting federal funding for research granting agencies will be a priority among Democrats. Research in areas where Republicans slowed the rate of funding increases or sought to reduce funding, including climate change and clean energy, are likely to see a boost. For example, 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 federal investments in aerospace, artificial intelligence, advanced materials, biotechnology, clean vehicles, and medical research. The Biden Administration also will build on the foundation of the Obama-era Cancer Moonshot initiative to create an agency with the singular mission of finding new cancer cures and treatments.

In response to COVID-19, Congress and the White House will pursue further investments in research funding in future recovery legislation. The retirement of House Appropriations Committee Chairwoman Nita Lowey (D-NY) may shift research priorities under a new Democratic leader, Rep. Rosa DeLauro (D-CT), who previously chaired the Subcommittee on Labor, Health and Human Services, Education and Related Services.

Democrats also will prioritize increasing diversity in research to support women innovators and innovators of color. President-elect Biden has outlined plans to increase investments in research at Historically Black Colleges and Universities (HBCUs), Tribal Colleges and Universities (TCUs), and Minority-Serving Institutions (MSIs) by $10 billion. The new investment would create centers of excellence to carry out research in climate change, globalization, inequality, health disparities, and cancer. The Biden Administration also will propose priority funding streams for federal agencies to provide grants and contracts for HBCUs and MSIs, while requiring that, for other federal grants, universities with endowments over $1 billion enter into subcontracting partnerships with a HBCU, TCU, or MSI.

Staffing levels in federal research-granting offices and the federal research enterprise is expected to depart considerably from the Trump Administration. Over the past four years, the administration targeted research agencies for reorganization and consolidation in an effort to reduce the federal workforce and decentralize research offices based in the Washington, DC area. Under President-elect Biden, such efforts will be halted and reversed.

Lawmakers in both parties also will continue to step up oversight and legislative efforts to address foreign threats to federally-funded research. The Biden Administration will pursue the issue with some notable differences from the Trump Administration, such as changing the heightened screening mechanisms for visas of researchers from certain countries. Overall, the research community is concerned that some of the Trump Administration's actions have had a chilling effect on research discovery.

Congressional Democrats tend to agree with the research community and will likely pursue additional measures to address foreign threats to research, while seeking to foster international collaboration and not profiling certain foreign researchers based on their country of origin. In implementing their policy agenda, House Democrats will use various legislative vehicles, including the annual appropriations bills, the National Defense Authorization Act (NDAA), and potential COVID-19 relief packages. For example, in the 116th Congress, language from the Securing American Science and Technology Act (H.R. 3038), led by Rep. Mikie Sherrill (D-NJ), was incorporated in the FY 2020 NDAA.

In the Senate, some Democrats may continue to support legislation not endorsed by influential higher education associations. This includes the possible reintroduction of the Safeguarding American Innovation Act (S. 3997), which was filed by Sen. Rob Portman (R-OH). The bill has the support of key Senate Democrats, including Sen. Tom Carper (D-DE) who is the counterpart to Sen. Portman as the ranking member of the Permanent Subcommittee on Investigations under the Senate Homeland Security and Governmental Affairs Committee.

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Workforce Training

Workforce policy will become a top priority for the White House and Congress. The Biden Administration is expected to push for significant investments in workforce training and apprenticeships. The COVID-19 pandemic has left 10.7 million individuals unemployed, with the youngest workers (16-24 years old) hit the hardest by the economic downturn. Additionally, workforce disparities revealed during the pandemic have increased attention to these issues as Congress pursues policies to get Americans back to work. The Biden Administration will work with Congress to innovate education and workforce programs to promote job creation and train the future workforce.

With his close relationships to labor unions, the President-elect will collaborate with organized labor to pursue policies to advance 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 work to 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 likely Senate HELP Committee Chairwoman 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 of 2020 (S. 3273), which would establish a community college and career training grant program that builds on the TAACCCT program.

Key bipartisan measures that may be markers in the 117th Congress include: (1) the National Apprenticeship Act (H.R. 8294), to expand access to apprenticeship programs, and provide nearly $4 billion in investments over the next five years; (2) the Skills Renewal Act (H.R. 7032/S. 3779), to establish a skills training tax credit for those unemployed as a result of the COVID-19 pandemic; (3) the JOBS Act (H.R. 3297/S. 839), to expand Pell Grant eligibility for short-term programs; and (4) the Advanced Technological Manufacturing Act (S. 3704), to reauthorize and modernize the NSF's Advanced Technological Education (ATE) program.

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 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.

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Labor

Labor issues will be a central focus of the 117th Congress, particularly issues related to worker classification, unionization, and collective bargaining. The issue of worker classification will be a priority of the Department of Labor under the Biden Administration, given the patchwork of relevant state laws, including California’s enactment of Assembly Bill 5 in 2019 that classifies most gig economy workers as employees. The Biden Administration will likely pursue federal regulatory actions to classify most gig economy workers as employees, which differs from that of the Trump Administration. The Department of Labor has recently 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, and publishing proposed and final rules (set to go into effect in early March 2021) clarifying whether gig economy workers are employees or independent contractors (and expanding independent contractor status) under federal minimum wage and overtime law governed by FLSA based on an "economic realities" test. We anticipate that the Biden Administration's Department of Labor will take immediate steps to delay or withdraw the final rules and to withdraw the opinion letter and/or issue updated guidance.

The Biden Administration also is likely to increase relevant enforcement efforts within the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC), Internal Revenue Service (IRS), Department of Justice (DOJ), and other state and local labor agencies. In addition, the administration may reintroduce an interagency worker classification taskforce to share such enforcement information with state and federal agencies.

The Biden Administration will use its regulatory authority and rely on legislative action to achieve aspects of its worker classification agenda. In addition to the regulatory steps discussed above, some of the legislative priorities may include creating a federal standard for worker classification based on 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. The administration also may seek to make worker misclassification an independent violation of the FLSA. A blueprint for the overall legislative strategy will likely be 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.

Further, legislative activity specific to the gig economy may also focus on portable benefits, which has garnered bipartisan support, particularly in the Senate. 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), which may be used as the basis for discussions.

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, 115th Congress), and the PRO Act will most likely be the framework for this pursuit. 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 under the NLRA, to re-codify the so-called "Browning-Ferris" standard, an Obama Administration policy position (that was itself a departure from prior DOL guidance) stemming from a National Labor Relations Board case of the same name. This standard is generally considered more employee-friendly, and among other things, would expand the universe of companies considered to be joint employers to those that exercise even indirect control over the essential working conditions of another company's employees, and would impose greater liability on joint employers for wage-hour violations. In March 2020, the Trump Administration's rule that narrowed the definition of a "joint employer" under the FLSA 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 Southern District of New York agreed, finding that the rule's implementation was "arbitrary and capricious" and conflicted with the FLSA. A similar back-and-forth battle has been waged by the NLRB over the past five years, and a revamped NLRB (with more members appointed by a Biden Administration) also would be expected to revert to the original "Browning-Ferris" standard, thereby imposing collective bargaining obligations on more joint employers.

While most of the unionization and collective bargaining agenda will require legislative action, the Biden Administration has opportunities to use unilateral regulatory action. For example, the Biden Administration could reinstate the Obama Administration's "persuader rule," which mandated public disclosure of instances when employers hire consultants to counter workers' union organization efforts.

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Immigration

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 both executive and legislative 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. Subsequently, in December, a US District Court Judge ordered the Department of Homeland Security (DHS) to resume the approval of new DACA applications and work permits and return to its prior practice of granting and extending DACA status for two years at a time. The order also instructs DHS to offer the benefit of advanced parole, allowing DACA recipients the opportunity to leave the country without threatening their status. This action will prompt the Biden Administration to review implementation of the application approval process moving forward. 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 a number travel ban policies, including banning entry into the US of foreign nationals from certain Muslim-majority countries, the so-called "Muslim Ban." The Biden Administration will likely 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 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 is anticipated to 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 with a priority on 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.

Other legislative priorities will include passing 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, as well as 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 acts passed the House this session before stalling in the Senate.

President-elect Biden's agenda will gain significant momentum in both chambers. Yet, immigration advocates supporting it will be concerned about whether it will be considered must-pass legislation. Democrats have promised a robust legislative agenda that some believe will be difficult to implement in the next two years. Further, President-elect Biden and Vice President-elect Kamala Harris will need to be ready to reach a compromise between the moderate and progressive wings of the party to achieve comprehensive immigration reform.

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To help our clients navigate the impact of the 2020 Election, we have created a Post-Election Analysis Center covering a wide range of topics. Please visit the Center to learn more and to subscribe for future client Advisories and notice of upcoming webinars.

© Arnold & Porter Kaye Scholer LLP 2021 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.

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