What can Biden do to reverse Trump's assault on labor rights?

Soon after Joe Biden is inaugurated as the next US president, he is expected to take several strong steps on the labor front aimed at reversing or remedying the policies of Donald Trump – who promised workers a lot and delivered little.

But Biden’s number one priority will be to tackle the issues left in the wake of the coronavirus pandemic.

Biden’s nominee for Secretary of Labor, Marty Walsh – the Mayor of Boston and before that a labor leader for decades – is likely to help advance Biden’s promises to help unions expand. Walsh, who had headed Boston’s federation of building trades unions, is expected to support increased spending on infrastructure to upgrade roads and bridges, strengthen the economy and create good-paying jobs. As mayor, he pushed for construction contractors to hire more workers of color.

With Covid-19 still raging across the US, many job safety experts say it’s urgent for Biden to do something that the Trump administration has failed to do: issue nationwide regulations directing businesses to take specific steps to protect their workers from the coronavirus, whether retail, restaurant, factory or construction workers.

Trump’s business-friendly Occupational Safety and Health Administration (Osha) repeatedly rejected labor unions’ pleas to adopt such safety standards.

“Clearly priority one is an emergency standard for Osha dealing with Covid and equally a focused, full-on press on inspections, enforcement and guidance. It means doing everything Osha hasn’t been doing,” said David Weil, a top labor department official under Barack Obama. “Ultimately the only way we’ll get public safety and reopening is if we get worker safety.”

Weil, now the dean at Brandeis University’s Heller School for Social Policy, said Osha under Biden should get far tougher than Trump’s Osha in holding employers accountable for failing to take steps to minimize Covid. Many worker advocates were dismayed by the modest fines that Trump’s Osha assessed, for instance, a $13,494 penalty against Smithfield’s pork-processing plant in Sioux Falls, South Dakota, where at least 1,294 workers contracted Covid. Smithfield’s parent company had revenues of $24.1bn last year.

Biden has signaled he will take many other pro-worker actions.

Although Trump held himself out as a champion of workers, he did nothing to raise the minimum wage or enact paid leave, while Biden has repeatedly called for a $15 minimum wage and guaranteeing workers 12 weeks’ paid family and medical leave. Biden has also backed far-reaching legislation that would make it easier to unionize, and his appointees to the National Labor Relations Board (NLRB) are likely to reverse many Trump labor board decisions that made it harder for workers to join unions.

Steven Pitts, a longtime labor economist at the University of California, Berkeley, said Biden should pursue two sets of labor policies. “One is try to raise and protect labor standards like a higher minimum wage and tougher safety rules,” he said. “Second is to build worker power into policy. Too often we focus on the former and not the latter.”

Biden has indicated he will seek to build worker power by strengthening unions. On election day eve, campaigning in western Pennsylvania, he promised to be “the most pro-union president you’ve ever seen”. In his campaign platform, Biden endorsed the Protecting the Right to Organize Act (Pro Act) which would make it easier for unions to organize workers by, among other things, greatly increasing penalties on corporations that break the law in battling to keep out unions.

Solid Republican opposition, along with a filibuster, blocked efforts by Barack Obama and Bill Clinton to enact pro-union legislation, and it will be similarly difficult for Biden to enact the Pro Act unless he musters 60 votes to overcome a filibuster.

Because Senate Republicans so often vote in line with corporate America’s wishes, it might also be difficult for Biden to get a $15 minimum wage or paid family and medical leave through the Senate.

William Samuel, director of government affairs at AFL-CIO, the largest federation of unions in the US, acknowledges that passing the Pro Act – a huge goal of labor – won’t be easy. He recommends that Biden, in addition to pushing to pass the Pro Act, pursue a parallel strategy: “He should use his bully pulpit to support the right of workers to organize and to shame employers who trample on those rights” – for example, by criticizing Amazon for firing the worker who led a New York walkout over Covid-19 safety.

“There will be lots of obstacles in his [Biden’s] way and we can hope and pray he can use his executive authority and the bully pulpit to advance the cause of workers,” Samuel said.

Because the Senate might be a formidable barrier to pro-union or pro-worker legislation, Samuel says Biden should use federal procurement policy to raise standards for workers. Many worker advocates want Biden to require federal contractors to pay their workers a minimum of $15 an hour and guarantee them twelve-weeks’ paid medical and family leave.

Biden and his running mate, Kamala Harris, opposed a California ballot initiative in which voters – swayed in part by a $200m campaign financed by Uber and other app-based companies – approved a measure that categorizes Uber and Lyft drivers and DoorDash delivery workers as independent contractors rather than employees. By defining them as independent contractors, the ballot initiative, known as Proposition 22, means these workers won’t receive state minimum wage or overtime protections, won’t receive paid sick days or unemployment compensation and won’t have their companies reimburse their expenses, like gasoline.

Uber has said it hopes to pass Prop 22-like laws or ballot initiatives to other states. But Pitts said: “How do we find a way to stop the spread of Prop 22 around the country – that’s an important thing.”

Worker advocates hope Biden’s labor department will issue guidance that goes far to trump Prop 22 by saying that under federal minimum wage and overtime laws, Uber and Lyft drivers should be considered employees, not independent contractors, because they are not truly independent: Uber and Lyft have great control over the work the drivers do, and the drivers are not really independently in business for themselves.

Weil, who headed the labor department’s wage and hour administration, said Prop 22’s definition of independent contractors contradicts the definition under the federal Fair Labor Standards Act, a 1938 law that creates nationwide minimum wage and overtime protections. “You just can’t decide, ‘I can treat them as independent contractors if that’s counter to what our Fair Labor Standards Act says,’” Weil said.

The Trump administration recently awarded an $810m contract to Uber and Lyft to provide rides to public agencies. Worker advocates say the General Services Administration should use its power to set contract conditions to insist that Uber and Lyft pay their drivers $15 an hour and treat them as employees.

Labor leaders say they hope Biden’s NLRB will reverse many of the anti-union actions taken by Trump’s NLRB – for instance, making it harder for workers at franchises like McDonald’s to unionize, making it harder for small groups of workers at larger establishments to unionize, letting employers prohibit workers from using the company email system to discuss union matters, letting companies bar union organizers from spaces open to the public, like corporate cafeterias.

“It’s going to be a slog to undo all the damage that’s been done the past four years by the Trump majority on the board,” said Wilma Liebman, who was NLRB chair during Obama’s first term. “Their overruling of precedent has been so sweeping. They’ve overruled precedents that went back decades.”

Liebman said the Trump board’s reversals of precedent twisted a pro-worker law, the National Labor Relations Act, in ways that always favored employers. But Republicans say the Trump board was merely undoing what they saw as the unduly pro-union tilt of the Obama board.