After months of speculation over President-elect Biden's choice to lead the Labor Department, the choice has been announced. Boston's Mayor Marty Walsh – a former leader of Boston's Building and Construction Trades Council, a coalition of unions in the Boston area – will succeed the current Labor Secretary, management-side lawyer Eugene Scalia, if confirmed by the Senate.
BACKGROUND OF MAYOR WALSH
Mayor Walsh, who was a member of Laborers' International Union of North America and president of its Boston local before his election to the Massachusetts House of Representatives, has strong union credentials. AFL-CIO President Richard Trumka was a leading supporter of Walsh's nomination and lauded his selection, predicting that he would be heeded by Biden and Congressional leaders in the fight “to increase union density.” Unions presently represent just 10% of American workers, and union membership has been declining steadily for decades – a trend that the President-elect promised to reverse in The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions posted on his campaign website at https://joebiden.com/empowerworkers/. Walsh's bid to become Labor Secretary also was endorsed by the heads of the AFL-CIO's two largest and most powerful national unions – AFSCME, which represents public employees, and the American Federation of Teachers.
Should Walsh be confirmed as Labor Secretary as expected, he will be thrust immediately into Covid-19 workplace issues, with development of an OSHA safety standard aimed at the coronavirus likely to be on top of the list, along with a greater emphasis on workplace inspections – both well-known Biden priorities. Other issues highlighted during the Biden campaign in which the Labor Secretary is certain to have a role include shepherding a $15.00 minimum wage bill through Congress, revocation and replacement of the newly published FLSA independent contractor rule that was opposed by Democrats, and policy changes in the paid leave and pay equity areas.
Notably, Walsh has successful experience as Boston's Mayor and as a union leader supporting several of these Biden goals. Indeed, during Walsh's tenure as Boston's Mayor and with his vocal support, the Commonwealth of Massachusetts enacted its paid family and medical leave law, and has legislated minimum wage increases due to reach $15.00 per hour in 2023. Walsh is credited with several initiatives to build diversity within Boston's building trade unions as head of the Building and Construction Trades Council and as Mayor. As Boston's Mayor, Walsh supported and signed an ordinance requiring workforces on City construction projects to meet specific goals for employment of minorities and women. While he headed the union council, he helped to develop pre-apprenticeship programs to create job training opportunities for women and people of color, both of which historically have been underrepresented in construction trades.
THE BIDEN PLAN
Given Mayor Walsh's past union leadership roles and the strength of his continued support from prominent unions, his nomination has been viewed as an affirmation of President-elect Biden's campaign commitment to aggressively promote the interests of organized labor and workers. To quote from the “Biden Plan” cited above and its three core promises:
“Check the abuse of corporate power over labor and hold corporate executives personally accountable for violations of labor laws;
Encourage and incentivize unionization and collective bargaining; and
Ensure that workers are treated with dignity and receive the pay, benefits, and workplace protections they deserve.”
To achieve these sweeping goals the Biden Plan promises to adopt legislatively or administratively a variety of measures, many of which were originated during the Obama administration at the National Labor Relations Board or the Department of Labor. The following items are among the more specific Biden Plan priorities that the incoming Secretary of Labor may be expected to implement or promote:1
- increased crackdowns on “wage theft” by employers “misclassifying” employees as independent contractors and through other wage and hour practices;
- holding corporations and executives personally accountable, and in certain instances criminally liable for interfering with organizing efforts and violating other labor laws;
- ensuring that federal dollars through government contracts do not flow to employers that engage in “union-busting activities,” participate in “wage theft,” or violate other labor laws;
- imposing monetary penalties for “bad faith” bargaining with unions;
- facilitating unionization by banning mandatory employer meetings where workers may hear “anti-union rhetoric”;
- reviving and codifying the Obama-era “persuader rule” to expose an employer's use of outside consultants in union campaigns;
- codifying into law the so-called “ambush election” rule adopted by the Obama NLRB but scrapped by the current Labor Board;
- reviving and expanding the Obama-era “card check” arrangement as a means for obtaining a union election;
- legislating a federal guarantee to public sector workers of the right to unionize;
- enacting a federal ban on state right-to-work laws;
- reinstating the Obama NLRB's Browning-Ferris decision easing joint employer liability to permit unionized employees of a franchisee to bargain directly with the franchisor;
- extending collective bargaining rights to independent contractors;
- banning permanent replacement of strikers;
- imposing California's ABC test to determine independent contractor status; and
- eliminating most non-compete and “no-poaching” agreements – a proposal that would reverse existing law in the 47 states that permit non-competes.
This list of proposed activity – only a partial one – portends an active agenda for Mayor Walsh in the likely event he is confirmed. Many of these measures go beyond the authority of the Secretary of Labor to accomplish, and indeed would require action by Congress or by other agencies. Walsh's deep union connections, his reputed pragmatism, and his reportedly strong relationship with the incoming president over a period of years position him as a likely leading advocate for advancing the Biden Plan in the halls of Congress and with other agency heads.
Employers should begin planning for changes likely to come after Inauguration Day. Businesses may find it helpful to identify and assess internal labor and employment policies that may be affected by changes in federal policy. Although new federal rules remain speculative at this point, planning for different scenarios may benefit employers looking ahead.
1 Quotation marks in these bullet points reflect phrasing contained in the Biden Plan.
Originally Published by Schnader Harrison Segal & Lewis LLP, January 2021
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