The Biden Labor Agenda
With Newly Confirmed Labor Secretary Marty Walsh, Workers Take the Spotlight
Former Boston Mayor Marty Walsh was sworn in on Tuesday as the 29th Secretary of Labor for the United States of America, the last of President Joe Biden’s Cabinet nominees to be confirmed by the Senate.
I wrote about Secretary Walsh’s Senate confirmation hearing in February (note: I am a former Walsh administration appointee and previously negotiated with him for number of years while he led the Boston construction trades unions), and highlighted his track record as a labor union leader and twenty-four years in elected office as a state representative and Mayor. True to core Democratic party principles, Secretary Walsh has been consistent in his support for LGBTQ issues in the workplace, closing the gender pay gap, eliminating racial disparities and promoting opportunity for diverse workers. He will be the first union member since painter turned labor leader Peter Brennan held the Labor Secretary position in the 1970s, and enjoyed eager support for his nomination from the AFL-CIO and American Federation of Teachers.
Walsh’s background, priorities and experience fit well within the agenda that the Biden administration has laid out for workers and workplaces across America. With Democratic majorities in the House and the Senate, labor is poised to take center stage for a number of major initiatives over the next four years.
That work began almost immediately: earlier this month President Biden took an unprecedented step to voice support of workers seeking to organize at an Amazon warehouse in Alabama.
A Rollback of Trump-Era Regulations is Underway
While Walsh awaited confirmation, the Biden administration got right to work with rolling back a number of Trump era regulations and enacting measures to address the ongoing COVID-19 crisis.
Safety advocates had been critical of the Trump administration’s lax support for Occupational Health and Safety Administration (OSHA) investigations, and in particular the response to an avalanche of reports of COVID-19 related workplace safety violations in 2020. Earlier this month, the Department of Labor (DOL) launched a COVID-19 Workplace Safety Plan with a focus on enhanced OSHA investigations and enforcement. The new Plan provides clearer guidance for workplace safety protocols, and includes enhanced in-person inspections and enforcement for reported violations. Over the next year, look for OSHA to step up record-keeping protocols for businesses as the agency staffs up to replenish its investigative ranks — now at the lowest number in years.
Last month, regulators in DOL’s Wage & Hour Division withdrew a recently implemented rule on independent contractors and moved to rescind a regulation on joint employers. The Trump administration had implemented a final rule on January 7 to expand the definition of independent contractors and exclude more workers from coverage under the Fair Labor Standards Act (FLSA). The withdrawal of the final rule signals a return to a more inclusive set of factors for determining whether an employer has control over a worker sufficient to convey employee status (and related legal protections and benefits).
Last January, the Trump administration was successful in limiting joint employer liability for FLSA violations — the first successful modification in six decades. A New York federal judge threw out a number of the regulation’s provisions in September, noting “major flaws” in the application of the FLSA. Going forward, look for a similar return to the previous standard for evaluating an employer’s control over employee decision-making as a condition for determining joint employer status under the law.
Tipped workers will also soon see revisions to a December 2020 Final Rule that will not be implemented. The Department today announced its intent to further delay implementation of the final rule to the end of this year, and to strip away controversial provisions in the rule like those that would have allowed managers and supervisors to share in tip pools traditionally reserved for hourly workers.
Legislative Priorities Focus on Economic Recovery and Union Growth
Secretary Walsh will hit the ground running this week to promote the American Rescue Plan Act of 2021 (ARPA), an expansive piece of legislation signed into law earlier this month by President Biden. With a price tag of $1.9 trillion, ARPA provides a jumpstart for the economic recovery that more than doubles the investment made by the American Recovery and Reinvestment Act (ARRA) during the 2008 recession.
ARPA focuses on protecting Americans sickened by COVID-19 and those that have suffered job loss or childcare needs as a result of the ongoing economic crisis. The Act extends a number of the Families First Coronavirus Relief Act (FFCRA) provisions enacted in 2020 to supplement state-level unemployment compensation and protect employees unable to work due to their own infection or a family member’s illness. Notable provisions extended under ARPA include:
- tax credits for businesses with less than 500 employees that provide paid sick or family leave for qualified COVID-19 related illnesses;
- $300 weekly unemployment compensation supplements and related pandemic unemployment assistance (PUA) for gig economy workers; and
- a tax credit for employers providing COBRA subsidies to former employees laid off due to the crisis.
ARPA also provides new categories of paid leave for employees to receive vaccine immunizations or to recover from immunization-related illness and to undergo testing for COVID-19 infections.
Turning to more traditional labor-related legislative initiatives, the House recently passed the PRO Act — the Protecting the Right to Organize Act — but the legislation faces an uphill battle in the Senate. Despite Democrat control of the chamber thanks to the Vice-President’s power to break ties, reluctance to modify the Senate’s filibuster rules means the Act will need 60 votes in order to move to the floor for a final vote.
As it now stands, the PRO Act would remove a number of barriers for employees seeking to organize a union and gain bargaining power at the table. Major provisions include:
- employees in “right to work” states would no longer be permitted to opt out of paying union dues in an organized bargaining unit;
- employers would be prohibited from engaging in “captive audience” speeches to dissuade employees from voting for a union;
- voting for a union would be permitted in locations outside the employer’s property;
- unions would be permitted to seek mediation or binding arbitration in the event of an impasse in negotiating a first contract; and
- corporate directors and officers may be subject to personal liability, similar to provisions found in certain civil rights and employment-based discrimination laws, in the event of unfair labor practices.
Action at the National Labor Relations Board
In February, President Biden appointed veteran NLRB Member Lauren McFerran as the body’s chair. McFerran recently laid out an expansive list of priorities for the Board, but a number of initiatives will remain on hold until the terms of current Republican holdovers expire in August.
When a Biden majority does take over at the Board, expect a reversal of the 2019 Super Shuttle decision that allowed businesses using independent contractors to evade union organizing. McFerran also expects to revisit last year’s decision in Bethany College, which exempts faculty at religiously affiliated higher education institutions from collective bargaining.
In organizing, the Board recently withdrew the Trump era proposed rule that would have excluded graduate students from the definition of employee — an issue that has bounced back and forth for more than twenty years as Board majorities have shifted under Democrat and Republican administrations. Graduate students at New York University first won the right to organize in a Clinton-era Board decision in 2000, which was overturned by the Bush-majority Board four years later in a case involving Brown University students. In 2016, an Obama majority on the Board allowed a unit of graduate students at Columbia University to organize. Moving past the abandoned rule, graduate students will have an clear path over the next four years to continue organizing campaigns at private institutions covered by the Board (graduate students at public institutions, covered by state-level counterparts to the Board, have long enjoyed collective bargaining rights — in some cases dating back to the 1960s). With the recent Elon University ruling, look for the Board to continue to revisit and further clarify organizing rights for adjunct and non-tenure track faculty.
Board Chair McFerran has also indicated a desire to prioritize other cross-industry organizing issues as well, including the adoption of more permissive rules for use of employer email systems (restricted in 2019’s Caesars Entertainment) and workplace uniform regulations during organizing campaigns.
Continued Expansion of Minimum Wage and New Efforts in Race, Gender and Parent Rights
At the regulatory level, look for a return to expanded worker rights and protections. In Massachusetts — as the then-Mayor of the Commonwealth’s largest city — Secretary Walsh supported the Legislature’s 2018 “Grand Bargain” to raise the minimum wage to $15.00 per hour by 2023, along with the implementation of a paid family and medical leave system for workers.
Look for similar efforts in Washington, where the Biden administration can be expected focus on expansion of the federal minimum wage rather than revisit an effort to raise the minimum salary necessary to exempt workers from FLSA overtime pay regulations. In 2016, the Obama administration issued a final rule raising the $23,660 minimum annual salary threshold for an overtime exemption to $47,476 ($913 per week). A number of states sued to enjoin the implementation of the final rule and, following a summary judgment issued against the government by a federal district court in Texas the following year, the Trump administration abandoned the final rule. Last year, the Trump administration issued a revised final rule and implemented a $35,568 minimum annual salary threshold ($684 per week) to exempt workers from the overtime provisions of the FLSA.
The gender wage gap is also expected to take focus under Secretary Walsh, who led a number of initiatives in Boston to provide women with advanced salary negotiation skills. Walsh has also indicated a desire to reinvigorate the Labor Department’s Women’s Bureau, focusing on pay equity and safe work environments — and expect paid parental leave to also take on a greater role in labor circles during the next four years.
Race will also continue to lead discussions about workplace equity in today’s changing environment. One of President Biden’s first acts was to rescind Executive Order 13950, which the previous administration issued to restrict training in federal agencies on unconscious bias and systemic racism. As Mayor, last year Secretary Walsh declared racism a public health crisis in Boston — and reaching back to his days as a union leader, Walsh helped create the Building Pathways program to recruit minority candidates to highly paid construction jobs and supported efforts to do the same for women.
Upcoming Discussion on Labor in Higher Education Under Biden. On May 17, I will be moderating a panel at Hunter College’s National Centers for the Study of Collective Bargaining in Higher Education and the Professions. The plenary discussion focuses on anticipated labor initiatives in higher education during the Biden Administration, and I’ll be joined by Lynn Pasquerella, President of the Association of American Colleges and Universities; Mark Gaston Pearce, Executive Director for the Workers Rights institute at Georgetown University Law School and former National Labor Relations Board Chairman; and Damon A. Silvers, the AFL-CIO’s Director of Policy and Special Counsel. The conference is free to attend but a donation is appreciated (and tax-free!); review the full agenda and register at http://www.hunter.cuny.edu/ncscbhep.
Michael Loconto is a Boston-based attorney and consultant. Follow Mike on Medium and subscribe through Substack to keep up to date on emerging policy and compliance issues in labor, employment and education.