Preparing to enter office in January 2021, President-elect Joe Biden has not yet announced his choice for Secretary of Labor, but the labor agenda Biden shared throughout the presidential campaign signals that greater workplace safety enforcement, progressive labor legislation, and a more union-friendly NLRB may be on the horizon.
Though many aspects of his labor agenda will depend on his party gaining a majority of seats in the U.S. Senate, President-elect Biden has indicated that he will use his presidential authority to immediately instruct the Labor Department’s Occupational Safety and Health Administration (OSHA) to step up worker safety enforcement. This increased worker safety enforcement will likely include an Emergency Temporary Standard, which would create guidelines employers must follow to protect their employees from the COVID-19 pandemic and new penalties for employers defying safety protocols. Biden has also promised to double the number of OSHA investigators to increase the agency’s capacity for enforcing existing workplace safety laws and standards.
Biden campaigned on enacting progressive, pro-labor legislation, supporting proposals for a higher minimum wage and bills aimed at strengthening workers’ ability to unionize. In 2019, the Democratic-controlled House of Representatives passed the Raise the Wage Act , which would raise the federal minimum wage to $15 per hour and eliminate the “tipped wage” which allows employers to pay workers less than minimum wage if the workers may receive tips. The House of Representatives similarly passed the Protecting the Right to Organize Act (“PRO Act”), which would allow workers to form unions by simply signing cards authorizing a union to represent them, rather than requiring an NLRB election. While President-elect Biden has expressed his support for these changes, passing this type of labor legislation will also likely require Democrats to gain a majority in the U.S. Senate.
Over the course of his upcoming term as president, Joe Biden also plans to make appointments to the National Labor Relations Board that will shift the Board back toward more pro-labor policies. Under President Trump, the NLRB included a majority of appointees known for pro-management views. The Trump NLRB overturned a number of decisions from the Obama-Era NLRB, issuing decisions that constrained how and where workers could organize and narrowed protections under the National Labor Relations Act. Where they did not succeeded in rolling back decisions issued by the Obama NLRB, the Trump NLRB also used the Board’s rulemaking process to change labor law in areas such as joint employer liability, issuing a rule which allowed outsourcing employers to more easily evade responsibility for working conditions in their businesses.
In August 2021, President-elect Biden will have his first opportunity to appoint a new board member to the NLRB (though Biden could move to fill the current Democratic vacancy upon taking office). Bloomberg News reports that among those being considered for an NLRB appointment is Levy Ratner’s own Gwynne Wilcox. Wilcox is an experienced labor attorney who has spent her career advocating for unions and workers. Others being considered include Kent Hirozawa (a former Board Member during the Obama Administration and current partner at the law firm Gladstein, Reiff and Meginniss), Jennifer Abruzzo (former Associate General Counsel of the NLRB during the Obama Administration and current Special Counsel for Strategic Initiatives at the Communications Workers of America), and David Prouty (former General Counsel of the Major League Baseball Players Association and current General Counsel of the Service Employees International Union, Local 32BJ). Biden’s consideration of these experienced Union-side labor attorneys signals that he is likely to appoint NLRB members who will revisit the labor policies set by the Trump NLRB with the goal of restoring workers’ rights under the National Labor Relations Act.