Even With a GOP Congress, Obama Could Still Defend American Workers. Here’s How.

David Moberg

David Moberg Senior Editor, In These Times

After the Republican mid-term election victories last November, labor unions and other worker advocates can expect virtually nothing but trouble from Congress over the next two years. With their ongoing attempts to undermine the National Labor Relations Board and the strong likelihood that they will bury any effort to increase the minimum wage, the Republicans’ grand plan calls for fewer rights and no pay increase for the working poor.

But the Obama administration may be able to execute an end-run around the GOP and fix some of the big problems facing workers if it wants to—especially those in low-wage, non-union jobs. Obama can veto whatever horrible measures Congress puts on his desk, and he can use several tools such as executive orders, drafting tougher rules to implement legislation more effectively, and demanding more vigorous action on labor law enforcement. 

The president has been increasingly exercising his executive powers. In one of his first major actions after the election, for example, he issued an executive order curbing deportation of undocumented immigrants. Last July, Obama issued the “Fair Pay and Safe Workplaces” executive order, which sets up a procedure to identify and screen out or reform federal contractors with serious histories of labor law violations. Earlier that month, he banned discrimination against gay workers by federal contractors, and in February 2014 he used his executive power to set a $10.10 minimum wage for all federal contract employees.

Each of these may sound fairly narrow, but cumulatively they will improve the lives of potentially hundreds of thousands  of workers. Without a Congress willing to pass the sweeping legal reform necessary to shore up workers’ rights in one bold stroke, the Obama administration can still defend workers using administrative guerrilla warfare. And in many cases, there may be a “spillover” effect of improved conditions from the government contractor side of a firm to other divisions, thus giving the executive order wider influence.

Many experts think that the federal government can do more with the laws on the books. According to Catherine Ruckelshaus, general counsel and program director of the National Employment Law Project, an activist think tank on workers’ rights, the Department of Labor (DOL) “has the tools it needs. It just needs to use them.”

Effective use of such tools heavily depends on the staff and leaders of the agencies involved.  Worker rights advocates and union officials give high marks to two Obama appointees to the Labor Department who will prove critical if the president pursues a strong administrative strategy: DOL Secretary Thomas Perez and David Weil, the administrator of the wage and hour division, which oversees enforcement of Fair Labor Standards Act (FLSA) standards like hours, overtime and the minimum wage.

Also, after a stalemate over the nomination of former NLRB member Sharon Block, the Senate approved Obama’s alternative nomination to the board, Lauren McFerran, on a party-line vote in December. Her approval assures that the board will continue to have a majority sympathetic to unions.  

In February, Obama is expected to announce revisions in the nation’s overtime rules for salaried workers through the DOL. Currently, only about 11 percent earn less than $23,600 and are thus entitled to overtime pay exceeding 40 hours a week. If Obama were to restore overtime pay to cover the same 65 percent of salaried workers as were covered in 1975, when the current standards were set, any salaried worker making less than $58,344 would receive overtime pay for more than 40 hours of work in a week.

While such a big jump is unlikely, any improvement will be welcome, just as Obama’s inclusion of domestic workers under overtime pay rules in 2014 was long overdue. The new overtime rules for salaried workers would not only boost pay for about 6.1 million workers, but also restore untold hours of now-uncompensated time to those workers, offering a lower middle-class counterpart to an increase in the minimum wage.

Agencies like the Department of Labor deal with the important problem of the “fissured workplace,” the term Weil coined for the way large, “lead” businesses like Walmart or McDonald’s maintain control over workers in warehouses, subcontractors or franchises while assuming no responsibility for working conditions and pay, nor any liability for what the franchises and their managers and employees do. . These companies hide behind a fig leaf of ambiguities in state and federal law even when they have overwhelming control of a workforce. With legal reforms unlikely, the DOL can still hold corporations accountable by enforcing the law more strictly and strategically.

Weil argues that the managerial shenanigans used to create the fissured workplace have contributed heavily to the growth of inequality, decline of unions and worsening of working conditions for tens of millions of Americans. Workers in many of those fissured jobs have been in the forefront of recent insurgencies against their employers, such as port truck drivers in Los AngelesFedEx drivers, and McDonald’s fast food workers.

So what else can Obama and his lieutenants do in his final two years? Here’s a short starter list, drawn from proposals by various unions and worker rights’ advocates:

  1. 1. Expand the executive orders to favor granting federal contracts to “model employers” that provide high wages, benefits and working conditions, and promote—or at least do not resist—collective bargaining. Focus enforcement on top violators whose punishment could help transform an industry. The department has already begun doing this on a modest scale, for example, with a leading gas station chain in New Jersey.
  2. 2. Hold all employers accountable, including where lead employers try to avoid accountability, for enforcement of workplace laws. Step up monitoring of improper classification of employees as “independent contractors.”
  3. 3. Take advantage of all enforcement options, including work with private, non-profit groups, such as worker centers and unions, to identify violators, educate workers about their rights and collect evidence.  
  4. 4. Raise the cost of violating the law, using methods such as seizing as “hot cargo” goods that at any point in the supply chain have been produced under unlawful conditions. (In 2012, the Obama DOL took action against Oregon blueberry growers accused of violations using this justification.)
  5. 5. Ensure that every employer gives a “clear pay stub” to each worker, to help workers know when their rights and pay standards are being violated
  6. 6. Use Americorps teams to teach workers their rights—especially in industries with high labor law violation rates. Take labor issues more seriously in upcoming trade debates such as the Trans-Pacific Partnership, and insist on strongly enforceable labor rights protection.
  7. 7. Enforce trade laws such as anti-dumping measures against underpriced steel products from China and other producers.
  8. 8. Issue a “fair chance hiring” executive order to give ex-offenders a better chance at geting a federal job, thus setting a higher standard for private employers.  
  9. 9. Set up inter-agency task force on subcontracting, outsourcing and the “fissured workplace,” as well as specific problem areas such as abuse of pension fund investment to drive down prevailing wages.
  10. 10. Use the bully pulpit more frequently to inform and inspire workers to act, shame bad employers and champion the good ones, make the case for high wages and democracy at work, and repeat over and over what he told a Pittsburgh rally last July: the U.S. “should do everything we can to strengthen unions in this country.”

If these proposals are implemented, Obama should keep the Department of Labor very busy, make a few employers very angry and leave many workers much better off at work. Not bad for two years under a Republican Congress.     


This has been reposted from In These Times.

David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at davidmoberg@inthesetimes.com.

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