Biden Admin’s Signals to Labor
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During the COVID-19 pandemic, frontline workers have rallied to highlight their struggles for better pay and workplace safety, and sought better protections to confront job instability during a recession. As an initial order of business, the Biden administration is sending some signals of listening.
President Joe Biden’s $1.9 trillion spending plan includes a proposal for a $15-an-hour federal minimum wage, though the measure is expected to be subject to filibuster in the Senate. The current federal minimum wage, which has stayed at $7.25 an hour, has not even kept pace with inflation — Dean Baker, senior economist at the Center for Economic and Policy Research, wrote last year that the current minimum wage would be closer to around $24 an hour if it had risen along with productivity since 1968.
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In the meantime, on Wednesday, the day of his inauguration, the new president took additional steps independent of Congress.
Biden first issued an executive order to build in federal employment protections for LGBTQ employees that would preserve the U.S. Supreme Court’s findings in the Bostock v. Clayton County cases. Consistent with the high court’s ruling in June in those cases, the executive order explicitly directs federal agencies to apply Title VII of the the Civil Rights Act of 1964, which protects employees from discrimination, to gay and transgender workers.
“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the Biden administration states as its official policy.
“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” reads the administration’s executive order, now posted on the White House website. “Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.”
On Wednesday, the president also took the unusual step of firing Peter Robb, the general counsel of the National Labor Relations Board, the agency that enforces the federally protected rights of workers to unionize and take collective action.
“These moves are a strong signal that the Biden administration is living up to the specific promises they’ve made on the campaign trail, and also promises we’ve made as a country to workers decades ago, and which still haven’t been fully kept,” said Michael Scimone, a partner at Outten & Golden LLP, who represents employees.
“The Supreme Court has told us now that Title VII protects LGBTQ people from discrimination, and so yesterday’s order ensures that the executive branch is going to enforce that law, as the Supreme Court has interpreted it, and will advance the policy of guaranteeing equal protection,” he said. “And that’s hugely important.”
Separately, the move to fire Robb, who as the NLRB’s general counsel held the most powerful decision-making role in the agency and who was widely seen as narrowing its interpretations of worker protections, is a significant move to return the agency to a worker-oriented mission, experts said.
The NLRB, which enforces statutes including the National Labor Relations Act, is essentially tasked with protecting employees’ rights to unionize, or organize collective efforts even outside of a union context. Decisions by the NLRB’s general counsel, including whether the agency should pursue complaints of unfair labor practices against employers, are final and can’t be reviewed by courts.
The agency’s role is particularly significant at a time when unionization rates have declined (just about 6.2 percent of private sector workers are unionized, according to 2020 data by the Bureau of Labor Statistics). Its protections matter to retail workers who have sought to be more vocal in pushing for improvements in working conditions, pay and benefits during the pandemic, and who have expressed concerns about retaliation for doing so, said experts.
“The labor people around Biden would like to see the board intervening much more aggressively to protect workers from losing their jobs for group action, action in the public interest and the like,” said Alan Hyde, a professor at Rutgers Law School.
Labor groups have indicated they are watching the administration’s policy choices and agency leadership decisions, as they pursue an audience with an administration they hope will be more inclined to consider the interests of workers.
“If we’re going to rebuild this country, we need to focus on the needs of working people,” said Stuart Appelbaum, president of the Retail, Wholesale and Department Store Union, which represents thousands of employees at retailers including Macy’s Inc. and Bloomingdale’s, and others including H&M and Zara.
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