A “Reverse Scalia”

To get a sense of what this would look like, we need only look at what has happened at the Department of Labor (DOL) under Donald Trump. While his administration is known for sowing political chaos and prioritizing personal loyalty over ability, Trump has appointed smart, competent people to run the DOL — who have used their smarts and competency to carry out a robustly anti-worker agenda.

Trump’s DOL was led first by Alexander Acosta, and since 2019 by Eugene Scalia, son of the late archconservative Supreme Court justice Antonin Scalia. Acosta and Scalia (along with their counterparts at the National Labor Relations Board) have used their rulemaking authority to undo many of the reforms enacted under the Obama administration, and to erode worker protections even further. The Economic Policy Institute has published a handy list describing fifty ways the Trump administration has hurt workers.

DOL-related highlights include:

• Refusal to issue COVID-19 workplace safety guidelines, and generally not enforcing the Occupational Safety and Health Act during the pandemic;
• Allowing states to deny unemployment insurance benefits to workers who refuse to return to unsafe jobs due to COVID-19 concerns;
• Giving employers more ways to avoid paying workers overtime;
• Allowing employers to avoid basic labor protections by misclassifying employees as “independent contractors”;
• Letting large corporations off the hook for their franchisees’ labor law violations by refusing to consider them to be “joint employers”;
• Allowing employers to lower tipped workers’ pay, and trying to allow employers to steal workers’ tips;
• Relaxing employers’ responsibility to track workplace injuries and illnesses.

These are technical, arcane rules, but they have real, material effects on workers’ lives. An aggressive Secretary of Labor actually committed to protecting workers’ rights could pull a “reverse Scalia” and undo or rewrite these and many other guidelines.

The Problem of Enforcement

Of course, the difference with a “reverse Scalia” is that even if the rules were rewritten, they would require beefing up enforcement. The guiding vision of Trump’s DOL is to let employers run their businesses however they see fit, which requires little to no enforcement. Unsurprisingly, DOL staffing levels have plummeted under Trump, as they have across the federal civil service.

Let’s just look at the Occupational Safety and Health Administration (OSHA), a branch of the DOL. The agency now has just 862 inspectors for hundreds of thousands of workplaces nationwide, fewer than at any time since 1975, and 42 percent of top career leadership positions remain unfilled. Predictably, the number of workplace inspections is at levels not seen since the Clinton administration. As thousands of workers have complained of unsafe workplaces due to COVID-19, OSHA has been unable to respond.

Restaffing the DOL will require money from Congress, which is far from certain even if Democrats regain control. But a pro-worker Labor Secretary could tighten up compliance with existing staff through what is known as “strategic enforcement.”

As Heidi Shierholz, former DOL chief economist and current Director of Policy at the Economic Policy Institute, explains, “The idea is to focus enforcement resources in industries and places where data show there is likely to be a high amount of noncompliance, rather than just responding to complaints.”

Strategic enforcement is no substitute for replenishing staff, but it’s the kind of “day one” reform a new Labor Secretary would have no excuse not to implement.

A Positive Vision

Beyond undoing the damage of the Trump administration and enforcing existing laws, a pro-worker Labor Secretary would be able to issue rules to enact a positive reform program without help from Congress.

The most urgent priority would be a comprehensive coronavirus response. The Trump DOL has been virtually silent in the face of the pandemic, as complaints have piled up and thousands of employers have put millions of workers’ health and lives at risk. It has issued a few unenforceable “guidance documents” with recommendations for how employers can protect workers, but it has refused to issue an “Emergency Temporary Standard” (ETS) to mandate safe workplaces. In June, a court blocked an AFL-CIO lawsuit to force OSHA to issue an ETS. A new Labor Secretary could change that.

Beyond COVID-19,there are several steps the new secretary could take immediately to protect workers, including:

• Reining in gig economy behemoths like Uber, Lyft, and DoorDash, along with other big companies like FedEx, by expanding the definition of employment so that employers can’t evade basic labor law protections by misclassifying their workers as “independent contractors;”
• Preventing large corporations like McDonald’s from hiding behind franchising agreements and temp agencies to avoid responsibility for their workers’ wage, hour, and working conditions by revising the “joint employer” standard;
• Boosting pay for roughly 2 million workers by increasing the threshold under which workers can qualify for overtime pay from $35,568 per year to the proposed 2016 level of $47,476, indexed to wage growth going forward.
• Protecting workers’ retirement accounts by requiring financial managers to act solely in plan members’ best interest by revising the “fiduciary rule.”

According to Robert Reich, who, as former Labor Secretary himself, is familiar with the ins and outs of administrative rulemaking, “all [these rule changes] could be done fairly expeditiously.”

More than anything, former National Labor Relations Board chair William B. Gould IV emphasized that it would be important for a new Labor Secretary to “be bold, particularly in the absence of opportunities for legislative labor law reform, through regulatory channels.”

But as bold and important as these reforms would be, they merely nibble around the edges of a profoundly broken US labor policy. They are just the things a Biden administration could do without worrying about congressional gridlock — and thus could not use that excuse to avoid doing them.

Bernie could certainly spearhead these kinds of reforms as Labor Secretary, but so could any number of progressive and competent labor scholars and attorneys. Indeed, many of them have been hard at work for years developing plans for a comprehensive overhaul of US labor law.

To the extent we even entertain the scenario of Biden creating openings for workers’ rights as a twenty-first-century FDR, Bernie would be better off reprising the role in that reboot of Senator Robert Wagner instead of Frances Perkins. That’s because the fundamental reforms that workers need won’t be implemented through smart policy-making by the right people in the right positions. They will be the result of mass mobilizations that force elites to act.

One of the signature features of Bernie’s presidential campaigns was that he actively used his electoral campaign to support and spark worker mobilization, instead of just channeling mobilized workers’ energy toward the ballot box. He would be better positioned to continue playing that role as a senator than as a cabinet member reporting to a President Biden.

Ultimately, though, as Bernie himself said during his campaign, it’s not about him — it’s about us. Even with a worker advocate in the Labor Secretary’s office, winning meaningful reforms will be impossible without pressure coming from the streets outside the office. Administrative rule changes are important, but they cannot be a substitute for that street-level pressure.