Written by Barry Eidlin, McGill University
With Joe Biden now declared the victor of the 2020 U.S. presidential contest, there is much speculation about who will be in his cabinet. For those concerned about workers’ rights, all eyes are on his possible pick for Secretary of Labor.
It’s a very consequential choice. Having a fierce worker advocate as Labor Secretary could make a big difference for workers in the U.S.—even if Biden himself remains lukewarm towards labor issues, and even if Congressional gridlock persists, as is likely the case.
No Democratic president since Franklin Roosevelt has won substantive labor law reform legislation, even with Congressional majorities. With a shrunken majority in the House of Representatives, and a Senate that will at best be an even 50-50 split depending on the outcome of the January runoff elections in Georgia, it is hard to see Biden doing much to push labor law reform in Congress, notwithstanding his frequent invocations of his hardscrabble days coming up in Scranton, Pennsylvania. While some are making the case for Biden being a 21st century Roosevelt, i.e. a moderate establishment politician who is pushed leftwards by events upon taking office, that is unlikely.
As large and inspiring as recent teachers’ strikes and Black Lives Matter protests have been, they do not approach the scale and level of sustained disruption that Roosevelt faced not only upon taking office in 1933, but throughout his entire term in office. Nearly 1.2 million workers went on strike in 1933, at a time when the labor force was just shy of 39 million workers and nearly 13 million workers were unemployed. By contrast, a three-decade high of 485,200 workers went on strike in 2018, at a time when the labor force was around 155 million workers and around 6 million workers were unemployed. As a percentage of employed workers, that is ten times more strikers in 1933 than in 2018 (three percent vs. 0.3 percent). And while strikes have largely been limited to the education sector and have leveled off since 2018, 1933 was just a warm-up for the explosion of strikes across all kinds of industries that occurred in subsequent years, reaching 4.6 million strikers in 1946.
While we cannot rule out a mass strike wave that forces labor law reform on to the political agenda in the coming years, we cannot bank on it either. But even if a massive and desperately needed legislative overhaul of labor law is not in the cards, a strong Secretary of Labor would have considerable room to enact substantial policy reforms that will make a difference to millions of workers. The key would be aggressive use of the Secretary’s administrative rulemaking authority—the power to determine how laws are interpreted and implemented.
A “Reverse Scalia”
To get a sense of what this would look like, we need only look at what has happened at the Department of Labor (DOL) under Trump. While his administration is known for sowing political chaos and prioritizing personal loyalty over ability, Trump has appointed smart, competent people to run the DOL— who have used their smarts and competency to carry out a robustly anti-worker agenda.
Trump’s DOL was led first by Alexander Acosta, and since 2019 by Eugene Scalia, son of the late archconservative Supreme Court justice Antonin Scalia. Acosta and Scalia (along with their counterparts at the National Labor Relations Board) have used their rulemaking authority to undo many of the reforms enacted under the Obama administration, and to erode worker protections even further. The Economic Policy Institute has published a handy list describing fifty ways the Trump administration has hurt workers.
DOL-related highlights include:
- Refusal to issue COVID-19 workplace safety guidelines, and generally not enforcing the Occupational Safety and Health Act during the pandemic;
- Allowing states to deny unemployment insurance benefits to workers who refuse to return to unsafe jobs due to COVID-19 concerns;
- Giving employers more ways to avoid paying workers overtime;
- Allowing employers to avoid basic labor protections by misclassifying employees as “independent contractors”;
- Letting large corporations off the hook for their franchisees’ labor law violations by refusing to consider them to be “joint employers”;
- Allowing employers to lower tipped workers’ pay, and trying to allow employers to steal workers’ tips;
- Relaxing employers’ responsibility to track workplace injuries and illnesses.
These are technical, arcane rules, but they have real, material effects on workers’ lives. An aggressive Secretary of Labor actually committed to protecting workers’ rights could pull a “reverse Scalia” and undo or rewrite these and many other guidelines.
The Problem of Enforcement
Of course, the difference with a “reverse Scalia” is that even if the rules were rewritten, they would require beefing up enforcement. The guiding vision of Trump’s DOL is to let employers run their businesses however they see fit, which requires little to no enforcement. Unsurprisingly, DOL staffing levels have plummeted under Trump, as they have across the federal civil service.
Let’s just look at the Occupational Health and Safety Administration (OSHA), a branch of the DOL. The agency now has just 862 inspectors for hundreds of thousands of workplaces nationwide, fewer than at any time since 1975, and 42 percent of top career leadership positions remain unfilled. Predictably, the number of workplace inspections is at levels not seen since the Clinton administration. As thousands of workers have complained of unsafe workplaces due to COVID-19, OSHA has been unable to respond.
Restaffing the DOL will require money from Congress, which is far from certain even if Democrats regain control. But a pro-worker Labor Secretary could tighten up compliance with existing staff through what is known as “strategic enforcement.” As Heidi Shierholz, former DOL chief economist and current Director of Policy at the Economic Policy Institute explains, “the idea is to focus enforcement resources in industries/places where data show there is likely to be a high amount of noncompliance, rather than just responding to complaints.”
Strategic enforcement is no substitute for replenishing staff, but it’s the kind of “day one” reform a new Labor Secretary would have no excuse not to implement.
A Positive Vision
Beyond undoing the damage of the Trump administration and enforcing existing laws, a pro-worker Labor Secretary would be able to issue rules to enact a positive reform program without help from Congress.
The most urgent priority would be a comprehensive coronavirus response. The Trump DOL has been virtually silent in face of the pandemic, as complaints have piled up and thousands of employers have put millions of workers’ health and lives at risk. It has issued a few unenforceable “guidance documents” with recommendations for how employers can protect workers, but has refused to issue an “Emergency Temporary Standard” (ETS) to mandate safe workplaces. In June a court blocked an AFL-CIO lawsuit to force OSHA to issue an ETS. A new Labor Secretary could change that.
Beyond COVID-19, there are several steps the new Secretary could take immediately to protect workers, including:
- Reining in gig economy behemoths like Uber, Lyft, and DoorDash, along with other big companies like FedEx, by expanding the definition of employment so that employers can evade basic labor law protections by misclassifying their workers as “independent contractors;”
- Preventing large corporations like McDonald’s from hiding behind franchising agreements and temp agencies to avoid responsibility for their workers’ wage, hour, and working conditions by revising the “joint employer” standard;
- Boosting pay for roughly 8.2 million workers by increasing the threshold under which workers can qualify for overtime pay from $35,568 per year to the proposed 2016 level of $47,476, indexed to wage growth going forward.
- Protecting workers’ retirement accounts by requiring financial managers to act solely in plan members’ best interest by revising the “fiduciary rule.”
According to Robert Reich, who as former Labor Secretary is familiar with the ins and outs of administrative rulemaking, “all [these rule changes] could be done fairly expeditiously.” More than anything, former National Labor Relations Board Chair William B. Gould IV emphasized that it would be important for a new Labor Secretary to “be bold, particularly in the absence of opportunities for legislative labor law reform, through regulatory channels.”
But as bold and important as these reforms would be, they merely nibble around the edges of a profoundly broken U.S. labor policy. They are just the things a Biden administration could do without worrying about congressional gridlock—and thus could not use that excuse to avoid doing them. Beyond that, many progressive and highly competent labor scholars and attorneys. have been hard at work for years developing plans for a comprehensive overhaul of U.S. labor law. Once the administrative rulemaking is taken care of, these more ambitious tasks could be next up on the agenda.
Ultimately, though, as Bernie Sanders said during his presidential campaign, it’s not about any one president or any one cabinet official — it’s about us. Even with a worker advocate in the Labor Secretary’s office, winning meaningful reforms will be impossible without pressure coming from the streets outside the office. Administrative rule changes are important, but they cannot be a substitute for that street-level pressure.
Barry Eidlin, “What Could Biden’s Labor Secretary Do?” Canadian Law of Work Forum (November 12 2020): http://lawofwork.ca/?p=13073