Written by Jonathan Levitan, 2L, Harvard Law School
Joe Biden is officially the Democratic party’s nominee for President. He will challenge President Donald Trump in the U.S. general election on November 3rd. If he wins, what would he do for unions and workers?
A growing chorus of voices now recognizes that U.S. labor law is fundamentally broken. But, keeping with his reputation for political moderation, Biden’s labor law agenda is centered around his support for a law already supported by most Democrats that would provide incremental, yet very significant, improvements for American workers. But – perhaps recognizing the fundamental problems that labor law faces – Biden promises to study and consider more drastic changes.
Biden’s Legislative Agenda
Biden’s most significant short-term promise is that he has pledged to support and sign the Protecting the Right to Organize Act (PRO Act), which was passed earlier this year by the Democratic-controlled House of Representatives but predictably died in the Republican-held Senate. If passed and signed into law, the PRO Act would be the most significant revision to the National Labor Relations Act (NLRA) since the 1940s. But that only says so much, since there has been essentially no significant revision of American labor law since the 1947 Taft-Hartley Act, which generally weakened protections for workers.
The PRO Act is not a revolutionary bill; it’s best to think of it as a reform that plugs the many holes that the courts, conservative politicians, and management have created in the NLRA. Because there are so many holes, the PRO Act would significantly strengthen unions and worker power. Its’ major provisions are:
- Dramatically increasing penalties for employers who violate labor law.Currently, an American employer who commits an unfair labor practice pays no civil penalties or fines, leading to widespread noncompliance. The PRO Act would authorize the National Labor Relations Board (NLRB) to fine employers up to $50,000 or $100,000 if they violate labor law (depending on the type of violation). Biden, meanwhile, pledges to go even farther than the PRO Act, “by [supporting] legislation to impose even stiffer penalties on corporations and to hold company executives personally liable when they interfere with organizing efforts, including criminally liable when their interference is intentional.”
- Banning “Right-to-Work” laws. Currently, a state can pass a law that forbids a union from negotiating into a CBA a requirement that all workers in the bargaining unit must pay dues.This creates a freeloader problem, where a worker can reap the benefits of union representation without paying their fair share for the union representation that the NLRA still requires. 27 states have passed these laws. The PRO Act would override “Right-to-Work” laws and forbid any new states from passing them.
- Allowing unions to use more flexible and powerful economic weapons.Unions would be able to engage in currently-illegal secondary boycotts, where a union boycotts a company that does business with the employer the union is engaged in a dispute with. The PRO Act would also legalize intermittent strikes, which Biden describes as essential for low-wage workers because those workers “often have too few resources to sustain long strikes, and instead require short, periodic strikes…to be able to bring pressure to their employer.” Finally, the PRO Act would ban employers from permanently replacing striking workers, which American law currently allows.
- Making it more difficult for employers to misclassify workers as independent contractors. The PRO Act would make the “ABC” test the nationwide test for determining whether a worker is an independent contractor or employee. California has recently adopted this test, and Uber and Lyft are fighting like hell to overturn the law because it makes it virtually certain that gig workers will be classified as employees, and therefore allow them to access the protections that labor and employment law provides.
- Forbidding employers from forcing their workers into individual arbitration. It would overturn the Supreme Court’s 2018 Epic Systems decision which held that employers can force their employees to sign agreements which waive the employee’s right to join a class or collective action against the employer, and force all disputes into individual arbitration. This would make it far easier to bring class actions against employers. Neither Biden nor the PRO Act would ban the practice of forced arbitration for individual employment disputes, however.
There are two major labor law reforms, beyond the PRO Act, that Biden says he will push for. First, he supports “card check” recognition, where a union can be certified as the exclusive representative of a bargaining unit if a majority of workers in the unit sign membership cards (currently, an employer can force a secret-ballot election for union representation). Card check was a major piece of the Employee Free Choice Act, the last major attempt at labor law reform, which failed in the early days of the Obama administration.
Second, Biden supports ending the longstanding exclusion of agricultural and domestic workers from the protections of labor and employment law. The political coalition that produced the labor and employment laws passed during the New Deal included white supremacist southern Democrats who sought to bar black workers from accessing the protections of those laws. Therefore, agricultural and domestic workers were excluded as a facially-neutral way to ensure those laws by and large only applied to white workers. Biden says he would sign legislation that closes these egregious loopholes.
Biden’s Non-Legislative Agenda
The PRO Act and Biden’s other legislative goals would make American workers’ lives better, but they are still unlikely to pass in the next four years even if Biden wins the presidency. Democrats would have to take the Senate (unlikely but possible) and either reach a 60 vote filibuster-proof supermajority (virtually impossible) or eliminate the filibuster, a procedural move that is gaining traction but still remains something of a longshot, in order to be in a position to pass progressive legislation. So Biden may have to rely on his executive authority to make change for American workers. First and foremost, Biden commits to appointing NLRB members “who will protect…worker organizing, collective bargaining, and workers’ rights to engage in concerted activity whether or not they belong to a union.” Trump’s NLRB has been an abject disaster for workers’ rights; Biden’s promises to be better.
But the most intriguing promise Biden makes has nothing to do with specific legislative or executive action. Biden says he will “[c]reate a cabinet-level working group that will solely focus on promoting union organizing and collective bargaining in the public and private sectors.” Biden says the group will be tasked with delivering a plan to “dramatically increase union density and address economic inequality.” The group will explore allowing states and cities to explore innovative changes to labor law. And most significantly, Biden says this group will be tasked with “further explor[ing] the expansion of sectoral bargaining, where all competitors in an industry are engaged in collective bargaining with a single or multiple unions.” Sectoral bargaining is becoming an increasingly accepted idea within the Democratic party, and its inclusion here suggests that Biden may recognize that labor law needs a fundamental redesign if it is going to support workers in the 21st century.
Biden’s full labor law agenda is here.
Jonathan Levitan, “Biden’s Agenda for American Workers: Closing Labor Law’s Loopholes with a Tease of More Radical Change” Canadian Law of Work Forum (August 27 2020): http://lawofwork.ca/?p=12963