For all the hand-wringing those interested in workers’ rights have done in the past few months, there is some cause for optimism: the comparatively progressive labor agenda heralded by a flipped Congress and a Democratic administration. Commenters expect a reinvigoration of the Protecting the Right to Organize (PRO) Act, a bill substantially amending the NLRA, THE LMRA, and the LMRDA which was passed in the House in February 2020. The bill, read twice in the Senate before being referred to the Committee on Health, Education, Labor, and Pensions, has been subject to considerable attack by conservative ideologues and apparatchiks, and indeed, from the state itself: the US Chamber of Commerce website invites viewers of its vitriolic attacks on the Act’s provisions to contact their representatives to voice their opposition to the PRO Act.

The newly constituted Congress is expected to make California’s “ABC Test” into Federal law. On this test, an employer seeking to classify a worker as an independent contractor must prove the worker is: (A) relatively free of the hiring entity’s control as to how the work is done; (B) performing work outside the usual course of the hiring entity’s business; and (C) customarily and regularly doing work in an established trade, occupation, or business of the same kind being performed for the hiring entity. Among other things, the measure would make misclassification of workers as independent contractors a violation of the National Labor Relations Act, for which violators could be subject to a fine of up to $`100,000. This definition of independent contractor marks a considerable departure from the last-minute final rule concerning the status of independent contractor recently issued by Trump’s Department of Labor. As Maxwell observed, the proposed rule would expand the amount of workers who may legally be classified as independent contractors; the California/PRO Act definition seeks to contract the amount of workers eligible for such a classification, and provide additional legal avenues for the enforcement of this relatively stringent standard for worker classification.

Again drawing on California labor standards, Biden also plans to ask Congress to “to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all non-poaching agreements.” California is unique in that non-compete agreements are generally regarded as unenforceable regardless of their reasonableness. Finally, Biden plans to ban mandatory arbitration clauses in employment contracts, per the Forced Arbitration Injustice Repeal (FAIR) Act.

But the labor movement is neither a monolith nor uniform in its aspirations, and many elements of Biden’s progressive agenda are under criticism by labor unions connected to construction of the Keystone XL pipeline. Yesterday, North America’s Building Trades Unions (NABTU), National Association of Manufacturers, United Association, and International Union of Operating Engineers, NABTU published an open letter to Biden yesterday, alleging that Keystone XL would establish 10,000 union jobs, and that the pipeline “will operate with net-zero emissions from the day it is placed into service in 2023.” Abby Smith of the Washington Examiner identifies an apparent inconsistency between Biden’s labor and energy agenda: that he will be unable to make good on his promise to create new high paying unions jobs in clean energy to replace fossil fuel-intensive ones should he carry out his planned cancellation of the Keystone XL pipeline. In support of this argument, Smith draws on a NABTU study showing that oil jobs tended to be higher-paid than jobs in renewable energy.