HRPA Staff Discuss 2023 Public Policy Outlook

HR Policy staff provided key legislative and regulatory updates on the most important issues to employers, including ESG, health care, non-compete ban, labor and employment, immigration, and data privacy and AI. The panel focused on the significant implications of these changes for employers and the Association’s advocacy and practice agenda.

Ms. Birbal shared that, while there are some  opportunities for legislative compromise on certain targeted issues, due to a split Congress, we are expecting more agency regulations under the Biden Administration’s whole government approach.  

• ESG will be a heated topic between blue and red states as Republican lawmakers move to pursue anti-ESG legislative proposals when shareholder proposals favoring ESG approaches and disclosure are increasing.
  
  
• Increasing regulations and actions are expected from multiple agencies with limited knowledge of and interaction with labor and employment policy issues, which will have implications for employers. Companies might have to change their policy and practice to comply with the new rules and be called before Congress for hearing over various issues.
  
  
• The association will continue to develop relationships with new agencies and advocate for the members. 

Ms. Faso stated that affordability and out-of-pocket costs will be a focus for this Congress. Specifically, Sen. Bernie Sanders (I-VT), Chair of the Senate Health, Education, Labor, and Pensions Committee, will use access and affordability to scrutinize employer-sponsored health care benefits. Drug prices, access to health care services flexibility, and mental health legislation and guidance are also on the government’s agenda. Additionally, the upcoming Department of Labor report to Congress on mental health parity violations and increasing drug prices due to Medicare drug pricing negotiations pose risks to employers.. Employers should also expect calls to defend their offerings on Capitol Hill. 

On the discussion of Federal Trade Commission’s proposed blanket non-compete ban, Ms. Huang shared that the Association will submit formal comments to the Commission, which has shown some signs of willingness to consider exceptions to the proposed total ban. Additionally, besides the FTC proposal, we have seen increasing partisan appetite and interests on this topic and expect legislative proposals to be introduced. 

Mr. Hoff commented, “The NLRB, and in particular its General Counsel, are operating under the premise that any employees not represented by a union are inherently being taken advantage of.” Mr. Hoff also shared that in addition to Board decisions that have already taken place returning to Obama-era labor policies, restrictions on workplace rules, regulations on independent contractors, and changes over arbitration agreements are on the horizon. 

Mr. Chasen noted ample state activity to pass comprehensive privacy legislation, with five states already having enacted such measures and similar proposals having been put forward in 20 states and counting. Additionally, multiple agencies are focused on HR technology tools as they consider regulating AI. Employers should also be aware of the possibility of conflicting and overlapping legislation in this regard.