That elections have consequences is generally accepted, but agreement on what those consequences will be for trucking outside of DOT is less universal.

It is anticipated that much of the Biden administration’s early focus will be on undoing the regulatory (often deregulatory) actions of the Trump administration. For example, rulemakings initiated by the Trump administration will be frozen in place and re-evaluated, portending an ominous fate for the recent DOL rule on independent contractors under the FLSA (if not otherwise voted down under the expedited procedures of the Congressional Review Act). The new administration may also seek change through litigation. For reference, roughly half of the Trump administration’s environmental regulatory actions are mired in lawsuits. The Biden administration’s Department of Justice may elect to no longer defend those suits or agree to settlements that result in new rulemakings. The DOL’s rule on joint employer status is an example of similarly situated labor regulation.

For his affirmative agenda, President Biden has been clear he favors a broad definition of employment and a stronger union presence. While the FLSA’s text and precedent may prevent the Biden administration from implementing the ABC test broadly through regulation, there may be more flexibility through an executive order applicable to government contracts. The administration could issue sub-regulatory guidance on worker misclassification and step-up enforcement that could prove challenging for trucking (for example, withdrawing a recently- issued, favorable Wage and Hour Division (WHD) opinion letter discussed on page 4). On the NLRB front, the Board will consist of a Republican majority until Aug. 27, 2021 (the expiration of a Republican member’s term), however, the inauguration-day firing of the Republican general counsel (whose term otherwise would not expire until Nov. 16, 2021) indicates the Biden administration intends to move aggressively within the existing constraints of the NLRB and may push for reversal of more recent employer-friendly decisions.

Climate change and environmental issues will receive immediate attention. Although the initial focus is anticipated to be on measures related to clean power and emissions from cars and light trucks, EPA may accelerate the Cleaner Trucks Initiative to reduce NOx emissions from heavy duty trucks.

Even with control of the Senate, enacting legislation will likely require some bipartisan support. As an alternative to eliminating the filibuster, Democrats may turn to special budget reconciliation procedures to pass taxing and spending measures, but even then, the 50-50 split in the Senate and narrowed majority in the House will require all Democrats (including centrists) to get on board. As a result, the regulatory agenda is likely where the consequences of the recent election will be most felt at the outset.