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President-elect Joe Biden held a virtual meeting on Monday with union leaders and corporate CEOs. Afterward, Biden declared that he’d told the executives “I’m a union guy” and that in his administration “unions are going to have increased power.”
Biden will have many opportunities in 2021 to show his words have meaning — even if one or both Democratic senatorial candidates in Georgia lose the upcoming runoff election, leaving Republicans in control of the Senate. As president, Biden will be able to mandate overtime pay for many more Americans; force businesses to implement protections from Covid-19 for their workers; require government contractors to pay a $15 minimum wage; and much more, no matter what current Senate Majority Leader Mitch McConnell, R-Ky., does. These possible changes to American working life would together add up to genuine material improvements in people’s lives.
Biden should be responsive to labor’s goal as a matter of simple politics. Labor unions just spent around $180 million in attempts to elect Democrats up and down the ballot. And with the Democratic Party increasingly focused on suburban professionals rather than its onetime working-class base, unions remain the party’s primary outreach operation to people without college degrees. Tens of thousands of shop stewards across the country worked to convince their often skeptical co-workers that Joe Biden and Kamala Harris were the ticket that was best for working people. Corporations demand results from the politicians they support; it only makes sense for unions to do the same.
Unions had high hopes on November 3, when it seemed plausible Democrats would not just win the presidency but also take back the Senate with several seats to spare. At that point the top priority on labor’s agenda was the Protecting to Right to Organize Act, also known as PRO. The PRO Act passed the House in February with all but seven Democrats voting in favor, and Biden had pledged to support it. The bill is an omnibus expansion of labor rights that would make it easier for workers to join unions, make employers face real consequences for violating labor law, and weaken so-called right-to-work state laws. If ever enacted, it would constitute the most significant labor victory since labor’s great defeat with the passage of the anti-union Taft-Hartley Act in 1947.
More than anything, the PRO Act would make the American political system responsive to the desires of regular people. Just 10 percent of the U.S. workforce belongs to a union, but polls show that half of the remaining 90 percent would like to.
“Right now workers want unions,” says Celine McNicholas, director of government affairs at the Economic Policy Institute, a liberal D.C. think tank that receives 20 percent of its funding from unions. “They’re not getting them and that’s because the process is so rigged against working people.”
However, the PRO Act is now almost certainly off the table. Even if the best-case scenario for Democrats comes to pass and both Rev. Raphael Warnock and Jon Ossoff, the party’s candidates for Georgia’s Senate seats, win the state’s January 5 runoff election, 50 members of the Senate will still be Republicans. In that case, soon-to-be Vice President Kamala Harris will be able to cast the tie-breaking vote to give control of the chamber to Democrats. But conservative Democratic senators such as West Virginia’s Joe Manchin will hold vetoes on labor’s ambitions.
That leaves the power of the executive branch – which, while not comparable to that of unified control of Congress and the presidency — is still considerable.
To start with, the Occupational Safety and Health Administration, part of the Labor Department, has the power to immediately issue an “emergency temporary standard” setting new safety regulations that businesses must meet to protect their workers from Covid-19. This is most badly needed in the meat processing industry, in nursing homes, and health care facilities, where dedicated employees have already paid a terrible price and continue to be at great risk. The Trump administration has refused to issue such a standard, and somehow has been unable to find more than a minuscule number of coronavirus-related health and safety violations even while receiving thousands of complaints. Biden’s Covid-19 plan specifically pledges that OSHA will implement an emergency standard and increase the number of OSHA inspectors.
Heidi Shierholz, chief economist at the Department of Labor during the Obama administration and now senior economist and director of policy at EPI, points out this will have positive effects beyond the well-being of workers. The straightforward fact, Shierholz says, is that “not having a standard holds back our control of the virus, and that hurts the economy.”
“Not having a standard holds back our control of the virus, and that hurts the economy.”
Then there are wage and safety standards for employees of private corporations working on federal contracts. In 2014, President Barack Obama issued an executive order requiring corporations to pay such employees at least $10.10 per hour. Trump has not rescinded this, and in fact the required minimum wage for federal contract workers will soon rise to a magnificent $10.95. But Biden advocated a $15 minimum wage for all workers during his campaign. Even if he can’t get that passed through Congress, he will have the power to immediately enact it for large numbers of people.
Obama signed another executive order in 2014 titled “Fair Pay and Safe Workplaces.” This was aimed at steering federal contract dollars only to corporations with good records on workplace safety, civil rights issues, and labor law. Trump revoked this order in the first months of his administration. Biden could reinstate it in the first months of his.
Next, there’s overtime. Under the 1938 Fair Labor Standards Act, employers are required to pay employees time and a half for overtime for any work over 40 hours per week. The bill’s authors understood that corporations would likely try various forms of trickery to avoid doing this for many regular, nonmanagement employees. One of the act’s attempts to guard against this was to set an “overtime salary threshold,” with any workers making less than the threshold being entitled to overtime pay.
Unfortunately, the threshold was not set to rise with prices, and it has only been increased once since 1975, when it was set at $23,660. At the time, about 60 percent of full-time workers made less than the threshold, but this number declined to 7 percent by 2016. That year, the Obama administration finalized rules that would have increased the threshold to $47,476, and also indexed it to inflation. It would currently be about $51,000.
But just before the change was set to go into effect in November 2016, a district judge in Texas blocked it. The incoming Trump administration did not oppose the decision, though in 2019 the Labor Department proposed raising the threshold to $35,308, with no automatic increases.
An analysis by Shierholz found that, compared to the Obama proposal, the Trump regulations do not cover 8.2 million workers, who are missing out on overtime worth $1.2 billion a year.
And this is by no means the end of the list. Trump’s National Labor Relations Board has consistently attacked worker rights, making it harder and harder to strike or organize a union. His Labor Department issued temporary guidance pushing states to deny unemployment benefits to workers who failed to return to jobs due to fears of Covid-19. The Labor Department also proposed rule changes that would screw tipped workers out of $700 million per year. All in all, the Trump administration fulfilled all 10 items on the U.S. Chamber of Commerce 2017 anti-worker wish list.
Changing all of this and more is in Biden’s hands. This is particularly true if he were to appoint Sen. Bernie Sanders, I-Vt., as his secretary of labor. Sanders has made no secret of his desire for the job, and passion for using it to leverage real changes in the U.S. workplace.
The truth is, however, that whether Biden will do everything he can is still an open issue. What is notable about Obama’s use of executive power in this area is that it was not a priority for him. He did not move immediately, generally leaving action until his second term.
In addition, during Obama’s first years in office, he did not try to mobilize support for the Employee Free Choice Act, a bill less ambitious than the PRO Act that nevertheless would have eased union organizing efforts and significantly increased labor power. From 2007 to 2010, unions waged an all-out push to pass the EFCA. Yet Obama — who’d pledged in 2007 as a candidate that “when I’m in the White House, I’ll put on a comfortable pair of shoes myself, I’ll walk on that picket line with you, as president of the United States of America” — was largely missing in action. EFCA languished during his presidency, never coming to a vote even when Democrats had large majorities in both houses of Congress in 2009-10.
Via his appointments, Obama did establish a pro-labor majority on the National Labor Relations Board by 2013. But the meaningfulness of this can be measured by the fact that union density in the U.S. continues to be the lowest it has been since 1936.
Bill Fletcher Jr., a former education director of the AFL-CIO, warned before the election that unions could not be complacent, no matter the outcome. “Reform needs to be linked to the economy,” said Fletcher, “as opposed to 2009 where it was a separate standalone issue. Labor needs to show that as worker power has decreased and the ability of companies to walk over workers has increased, what that has meant in terms of living standards for the average worker.”
Most importantly, Fletcher believes, unions need to be unafraid of crossing the Biden administration in order to make much happen. “There can be no idle period for Biden,” Fletcher said. “There cannot be a sitting back. Labor needs to be in his face.”