How Tuesdays Election Could Impact Labor Policy

Politico published the following analysis about potential future outcomes from tomorrow’s election.  It’s worth a read.

A year ago, Democratic leaders unveiled a set of labor bills branded a “Better Deal” for workers.

“Should we get the majority,” Senate Minority Chuck Schumer said, “this is going to be at the top of our list early January 2019.”

That promise is taking on new relevance as Democrats are forecast to regain the House in Tuesday’s midterm elections. Over the past two years, Democrats have quietly laid out a road map for how they would reshape labor law. Although Schumer probably won’t be involved directly — Republicans are expected to keep the Senate — he and House Minority Leader Nancy Pelosi are in lock step on labor issues.

Without a Democratic Senate majority, however, these bills have virtually no chance of advancing past the House.

Here’s some of what House Democrats might move:

Unions and the NLRB

Democrats want the National Labor Relations Board to intervene more aggressively on behalf of workers. That possibility is already stirring opposition from the Chamber of Commerce, which last week published a report urging businesses to unify against it.

The Democrats have proposed two major pieces of legislation concerning labor unions: the Workplace Democracy Act, introduced by Sen. Bernie Sanders (I-Vt.) and Mark Pocan (D-Wis.), and the Workers Freedom to Negotiate Act, introduced by Senate HELP Committee Ranking Member Patty Murray (D-Wash.) and would-be House Education and Labor Committee Chairman Bobby Scott (D-Va.).

The Workplace Democracy Act would:

— Repeal state right-to-work laws that prohibit mandatory fees charged to union non-members to cover their share of collective bargaining costs;

— Allow workers to form a union through “card check,” an informal process that avoids an NLRB-run secret-ballot election, without first securing permission from management;

— Permit workers to organize secondary boycotts and pickets that target companies that do business with their employer (prohibited by the 1947 Taft-Hartley amendments to the NLRA, which also ended unencumbered card check elections and authorized states to pass right-to-work laws);

— Reinstate the Obama administration’s so-called persuader rule, which a federal judge struck down in 2016; the rule required employers to disclose the hiring of outside consultants to counter union drives even when the consultants didn’t interact with workers (previously consultants who interacted only with management were exempt);

— Codify the Obama-era Browning-Ferris standard on joint employment, which made it easier for businesses to be held liable for labor violations committed by their franchisees and contractors.

The Workers Freedom to Negotiate Act would:

— Overturn Janus v. AFSCME, the Supreme Court decision that imposed right-to-work rules on public employee unions;

— Allow the NLRB to levy fines for NLRA violations (rather than merely collect back pay), and hold company managers personally responsible if they knew about a violation and failed to stop it;

— Allow workers to sue their employer in civil court in addition to filing an NLRB complaint;

— Allow workers to demonstrate in “solidarity” with workers from other businesses and allow workers to engage in sporadic — or “intermittent” — strikes.

— Bar managers from requiring employees to attend “persuader” meetings;

— Write into law an Obama-era rule requiring federal contractors to disclose labor violations (opponents often refer to this as the “blacklisting” rule);

— Nationalize California’s so-called “ABC” test, making it harder for businesses to classify workers as independent contractors;

— Overturn the Supreme Court’s decision in Epic Systems v. Lewis, which allowed employers to require employees to sign mandatory arbitration agreements barring participation in class action lawsuits.

Paid Family Leave

The House may take up the FAMILY Act, sponsored by Rep. Rosa DeLauro (D-Conn.) and Sen. Elizabeth Warren (D-Mass.), which has emerged as Democrats’ favorite paid family leave bill. It would give new mothers and fathers 12 weeks’ paid leave, as well as workers tending an ailing family member. It would be funded through new employee and employer taxes, replacing up to 66 percent of each worker’s salary (up to a capped amount).

Even though Trump has said he’ll sign a paid leave bill (in deference to his daughter, Ivanka Trump, a strong advocate for paid leave), this bill, too, would likely die in the Senate.

Minimum wage

Scott’s Raise the Wage Act, which would phase in over several years an increase to $15 in the hourly minimum wage, has support from more than 170 Democrats, including Pelosi (Sanders has a Senate bill by the same name). After years of forcefully advocating a minimum-wage hike, Democrats almost have to take a symbolic vote, and anything less than $15 probably wouldn’t fly with party’s left flank. This bill, too, would almost certainly be dead on arrival in the Senate.

“It’s an easy vote for the Democrats to push in the House,” said Marc Freedman, vice president of employment policy for the U.S. Chamber of Commerce, “because nobody who has to worry about it thinks it will go anywhere.”