The Biden Administration Can Reverse Much of Trump's Bad Labor Policy Without Congress

For the last four years, at every turn, the Trump administration systematically promoted the interests of corporations and shareholders over those of working people. Through a series of executive orders and agency regulations, the Trump administration attacked workers' health and safety, wages, and collective bargaining rights. It is critical that the Biden administration work from day one to reverse these actions and strengthen workers' rights. Here, we review the Trump administration's anti-worker executive and regulatory actions and chart a course for the new administration to address these harmful actions.

Executive Orders: President Trump issued several anti-worker executive orders. President Biden should repeal these orders on day one of his administration.

• Weakening federal workers' collective bargaining rights. On May 25, 2018, President Trump issued three executive orders aimed at eroding the collective bargaining rights of federal workers:
  
  • E.O 13836--Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining--shortened the timeframe expected to complete bargaining and directing agencies not to bargain over certain topics.
  • E.O 13837--Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use--limited the use of official time for collective bargaining activities.
  • E.O. 13839--Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles--weakened due process protections for federal workers subject to discipline.

In October 2019, President Trump signed Executive Order 13897, which revoked an executive order from the Obama administration that gives employees of federal contractors the right of first refusal for employment on a new contract when a federal service contract changes hand.

• Privatizing America's apprenticeship programs. President Trump signed an Executive Order Expanding Presidential Apprenticeships in America in June 2017, allowing third-party private entities to develop government-funded apprenticeship programs. By permitting third parties to set their own standards for government-funded apprenticeship programs, the order inhibits the Department of Labor (DOL)'s ability to provide proper oversight of federal apprenticeship program standards, which in turn reduces the quality of the program.
• Exposing meatpacking workers to COVID-19. At the beginning of the coronavirus pandemic, President Trump issued Executive Order 13917, which claimed to require the nation's meat production plants to remain open. However, the order did not actually prevent public health departments from closing plants, nor did it designate the industry as an essential industry, but it has been used by the Trump administration to intimidate local agencies from closing plants with multiple deaths and huge outbreaks. As a result more than 44,000 meatpacking workers have tested positive for the coronavirus and more than 200 have died.

Regulations: In spite of anti-regulatory rhetoric, the Trump administration issued a number of regulations that undermined workers' wages, safety, and collective bargaining rights. The Biden-Harris administration should repeal these anti-worker regulations.

Wages

• Leaving millions without overtime: In 2016, the Obama Department of Labor updated the overtime salary threshold from $23,660 to $47,476, but this update was ultimately blocked in the courts before the rule could be fully implemented. Instead of defending the 2016 rule--which would have strengthened overtime protections for 12.5 million workers--the Trump administration proceeded with their own proposed rule. Under the 2019 rule, the Department of Labor updated the overtime threshold to $35,568. Roughly 8.2 million workers who would have benefited from the 2016 rule were left behind by the Trump administration's rule.
• Joint-employer standard under the Fair Labor Standards Act (FLSA): In January 2020, the Department of Labor finalized a rule that narrowed the joint-employer standard under the Fair Labor Standards Act. EPI estimated that the rule would cost workers more than $1 billion annually by increasing wage theft and by incentivizing workplace fissuring. Fortunately, a federal judge struck down the rule in September. The judge's decision cited DOL's failure to address EPI's analysis of the rule's cost to workers, stating "EPI estimated that the Final Rule would cost workers $1 billion per year...by ignoring EPI's estimate, the Department effectively assumed that the Final Rule would cost workers nothing--an obviously unreasonable assumption."
• Expanding the use of the fluctuating workweek method: In June 2020, the Department of Labor finalized a rule that makes it easier for employers to use the "fluctuating workweek method" for calculating overtime pay. Under this method, employers can pay workers half of their regular rate for hours worked over 40, rather than the usual time-and-a-half. In addition to providing workers with less overtime pay, the rule provides an incentive for employers to require workers to work more overtime, which undermines the purpose of overtime protections under the Fair Labor Standards Act.
• Privatizing the Employment Service: The Department of Labor finalized the Wagner-Peyser Act Staffing Flexibility rule in January 2020, which removed the longstanding, legally required, merit-based staffing rule for the Employment Service and allow private entities to receive Wagner-Peyser Act funding. The Employment Service provide critical services, including job-search assistance, job-referral and placement assistance for jobseekers, reemployment services for unemployment insurance claimants, and recruitment services for employers with job openings. The Department's changes make it less likely that job seekers get high quality services when they most need them and will likely reduce job quality for those services.

Health and Safety

• Making large employer workplaces less safe: The Department of Labor rolled back parts of the Tracking of Workplace Injuries and Illnesses rule in January 2019, which required companies with more than 250 workers to electronically submit detailed information to the Occupational Safety and Health Administration (OSHA) on workplace injuries.
• Cherry-picking mine inspections: In April 2018, the Mine Safety and Health Administration finalized a rule that weakens metal/nonmetal mine safety inspection requirements. Prior to the final rule, mine safety inspectors were allowed to conduct a safety examination at any time, including during the mineworkers' shifts, making it easier for inspectors to spot unsafe practices and stop them before someone gets hurt. Under the final rule, mine safety inspections can occur only before or right as workers are beginning their shift in the mine.
• Increasing hog speed lines: The Department of Agriculture finalized a rule in April 2019 that would allow an unlimited increase in hog slaughter line speeds--putting public health, worker safety, and animal welfare at risk. EPI analysis estimated that even a 1% increase in nonfatal injuries and illnesses as a result of the rule would increase the cost of the rule by more than $2 million annually--and that is a markedly conservative estimate because it does not take into account the potential for increased fatalities.

Right to Organize

• Narrowing the joint-employer standard under the National Labor Relations Act (NLRA): In February 2020, the National Labor Relations Board finalized a rule that narrowed the joint-employer standard under the National Labor Relations Act, leaving more workers unable to hold the employers who control key aspects of their jobs accountable for violation of labor law. EPI estimated that workers will lose $1.3 billion in wages annually as a result of the rule.
• Undermining union elections: At the beginning of the coronavirus pandemic, the National Labor Relations Board finalized a rule making it harder for workers to win and keep a union. The rule made it harder for workers to get a fair election by allowing union elections to proceed even when the employer violates the law during the campaign. Moreover, the rule made it harder for workers who get a union to keep their union. Instead of giving workers reasonable time to bargain their first contract with their employer following voluntary recognition, the rule allows for a union to be de-certified in as little as 45-days--undermining the union recognition process and destabilizing the bargaining process.

In addition, the Trump administration proposed the following rulemakings, but has yet to finalize them. The Biden-Harris administration should suspend these rulemakings.

Wages

• Independent contractors under FLSA: In September 2020, Department of Labor proposed a rule on independent contractors that would narrow the broad definition of "employee" under the Fair Labor Standards Act.The proposed rule would make it easier for firms to classify workers as independent contractors instead of as employees, the latter of which receives wage and hour protections under FLSA. EPI estimates that the rule would cost workers more than $3.7 billion annually--at least $400 million in new annual paperwork costs, and at least $3.3 billion every year in the form of reduced pay and benefits. Further, social insurance funds (Social Security, Medicare, Unemployment Insurance, and Workers' Compensation) would lose at least $750 million annually in the form of reduced employer contributions.
• Tip regulations under the FLSA: In October 2019, the Department of Labor proposed a rule that would make it possible for employers to require that tipped workers spend more time doing non-tipped work while still earning a sub-minimum wage for tipped workers. In particular, this proposal would put an end to what is known as the "80/20 rule," which says that tipped workers being paid a sub-minimum wage can spend no more than 20% of their time on non-tipped activity. EPI estimated that this rule would cost workers more than $700 million annually. The impact of this rule on workers would likely be more negative during the COVID-19 era, when there is less tipped work and more non-tipped work than before as, for example, restaurants have shifted service from dine-in to take out.

Health and Safety

• Young workers in health care occupations: In September 2018, the Department of Labor proposed a rule that would allow 16- and 17-year-olds to independently operate power-driven patient lifts. The Department claims that the proposed rule will increase the participation of young workers in health care occupations without reducing worker safety. However, EPI analysis finds that the employment of 16- and 17-year-olds in nursing care facilities was actually higher than would have been expected once the current policy was implemented. Since there is no empirical evidence that the earlier policy change hurt the employment of 16- and 17-year-olds, there is also no evidence that the proposed rule would improve the employment opportunities of 16- and 17-year-olds.

Right to Organize

• Excluding graduate students under the NLRA: The National Labor Relations Board proposed a rulemaking in September 2019 that would strip student workers at private universities of their right to organize and collectively bargain. The immediate effect of this proposed rule would be to take away the collective bargaining rights of the roughly 57,500 graduate assistants working at private universities. Additionally, more than 1.5 million graduate students at private universities would stand to lose the right to form a union.
• Limiting official time in Equal Employment Opportunity Commission (EEOC) cases: In December 2019, the Equal Employment Opportunity Commission proposed a rule that prohibits union representatives from using official time to represent their co-workers in an equal employment opportunity (EEO) matter. By prohibiting union representatives from using official time during EEO matters, the proposed rule effectively limits the right of federal workers to choose their representative in the EEO complaint process.
• Limiting access to voters in union elections campaigns: This summer the National Labor Relations Board proposed a rule that eliminates the mandatory disclosure of employees' personal telephone numbers and email addresses during a union organizing campaign. The board's proposal ignores the reality of the increased role electronic communication now plays on and returns the voter list requirement to outdated means of communication, effectively depriving workers of information on workplace representation.

• Office of Labor-Management Standards reporting: This fall, the Department of Labor proposed a rule that requires certain unions to list more financial information in annual disclosure forms under the guise of transparency. However, the proposed rule creates additional administrative burden for filing unions on a form that already can already exceed upward to 1,000 pages. Further, the proposed rule would disclose confidential information that would be harmful to unions and their members.

Congressional Review Act (CRA): In addition to the executive orders and regulations discussed above, the Trump administration and Congressional Republicans rolled back several worker protection rules issued by the Obama administration using the Congressional Review Act (CRA), a rarely used process that allows for an expedited process to overturn certain rules issued by previous administration. The following rules were revoked under CRA. The Biden administration must work with Congress to explore ways to provide workers the important protections they lost when these regulations were overturned.

• Allowing federal contractors to violate labor and employment laws without repercussions: During the first 100 days of his administration, President Trump signed a resolution blocking the Fair Pay and Safe Workplaces rule, which requires that contractors to disclose violations of federal labor laws and executive orders addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights protections. By blocking this rule, President Trump ensured that federal contractors with records of violating basic labor and employment laws will continue to be rewarded with taxpayer dollars.

• Subjecting unemployed workers to unneeded drug tests: In March 2017, President Trump signed a resolution blocking a rule clarifying when jobless workers applying for unemployment insurance (UI) benefits may be subjected to drug testing. As a result, unemployed workers continue to face barriers when seeking unemployment insurance benefits, including the tens of millions of workers who have filed for UI benefits during the coronavirus pandemic.

• Making workplaces less safe: President Trump signed a resolution in April 2017 blocking the Workplace Injury and Illness recordkeeping rule, which clarified an employer's obligation under the Occupational Safety and Health Act to maintain accurate records of workplace injuries and illnesses. By clocking the rule, the Trump administration has made it impossible for OSHA to require employers to keep accurate records that could be used to identify unsafe, potentially life-threatening working conditions. As a result, workers will be required to work in less safe workplaces.

The Trump administration has consistently advanced a pro-corporate, anti-worker agenda. It is critical that the Biden administration work with the same diligence from day one to reverse these actions. But simply reversing the Trump anti-worker agenda will not be enough. The Biden administration must also work to advance a workers' first-100-day agenda that includes measures that provide working people with critical rights and protections.