The Wall Street Journal reported over the weekend that Biden’s Labor Department is likely to resort to Executive Action to implement his labor agenda should Republicans retain control of the Senate. Candidate Biden promised to empower American workers, raise the federal minimum wage and bolster union membership. But the Republican Senate majority generally opposes such measures, and Democrats are unlikely to win the two run-off elections in Georgia on Jan. 5 necessary to take back the Senate.
Without Congress, the Biden administration is likely to shift to regulatory and executive-measures, such as increasing enforcement of worker-safety rules or changing policies for federal contractors. Biden also swore to undo Trump-era regulations by which businesses could count more workers as independent contractors who aren’t eligible for heightened worker benefits.
- Biden will almost certainly undo Trump Executive Order 13950, Combating Race and Sex Stereotyping. The Order requires employers to refrain from conducting diversity and inclusion training on particular “divisive concepts,” including “inculcating” employees in “any form of race or sex stereotyping or any form of race or sex scapegoating.”
- Biden will increase oversight of employers’ COVID-19 safety measures, by pushing OSHA for more investigations and greater penalties. Biden’s OSHA may also issue a COVID-specific health and safety standard. Biden will also likely revive Obama-era rules requiring employers to publicly disclose occupational illnesses and injuries at their workplaces, which is intended to incentivize compliance with health and safety standards.
- Biden has encouraged labor union organizing as a tool to garner employees greater wages, benefits, and protections. With a GOP-controlled Senate, Biden will probably appoint individuals to the National Labor Relations Board who will pass rules expediting union elections, and reversing a Trump-era precedent that restricts worker access to company communications for union-organizing efforts. President Biden will also likely reinstate Obama-era rules requiring federal contractors to remain neutral with respect to union organizing, and to disclose employment-law violations.
- Biden will probably crack down on independent contractor misclassification. He has endorsed California’s strict ABC test for distinguishing employees from independent contractors, which requires employers to prove the legitimacy of all ‘contractor’ classifications and defines the term narrowly. His support of the ABC test signals his administration will also strictly enforce independent contractor misclassification and that the Labor Department will engage in rulemaking on the topic.
- He and Vice President Harris will push for gender pay equity by resuscitating the Obama-era requirement that employers disclose pay data on EEO-1 reports, and by directing the Office of Federal Contract Compliance Programs (OFCCP) to aggressively enforce prohibitions on wage discrimination by federal contractors.
Finally, an op-ed in USA Today has highlighted California’s practice of exploiting prison labor to fight the state’s wildfires with minimal safety training or pay. According to the op-ed, California has placed thousands of incarcerated women, men and teenagers in one of 192 inmate fire crews to battle the fires that have erupted this season. They receive a mere two weeks of training, earn as little as $2.90 a day, work in brutal 24-hour shifts, face raging blazes, and risk their lives in highly dangerous conditions.
In return, the state promises them a shot to have their criminal records erased. The op-ed points out that the choice between joining a fire crew, or the alternative of not having one’s criminal record expunged, leaves no real choice at all — the latter is “far more bleak and life threatening.” So each year, upwards of 3,000 inmates “volunteer” to risk their lives in the Conservation Camp Program, in order to earn a shot at expunging their records and starting fresh after incarceration. Shackled labor now forms a third of the state’s firefighting capacity, and saves California taxpayers about $100 million a year. Notably, the union that represents Cal Fire employees vehemently opposes prison labor, in recognition that it drastically lowers the bar for firefighters and puts even the most experienced crews at greater risk.