The Warren Labor Plan

I am somewhat skeptical about the excitement around Elizabeth Warren’s plans for everything, not because I think they are bad or a bad idea, but because the structure of the American government is going to make 90% of these ideas impossible to implement in between 2021 and 2025. But labor plans are different because so much of labor policy is implemented through appointees within the Department of Labor and especially the National Labor Relations Board. Bernie released a very good labor plan a few weeks ago. Warren has now released hers and it is also outstanding. Just a few highlights.

There are three core federal laws that protect and empower workers. The National Labor Relations Act (NLRA) protects the rights of workers to engage in collective bargaining with employers. The Fair Labor Standards Act (FLSA) creates a federal minimum wage and sets overtime and other wage requirements. And the Occupational Safety and Health Act (OSH Act) aims to ensure a safe working environment.

These laws should protect all workers. But outdated exceptions — some originally motivated by outright racism or sexism — and changes in modern working arrangements have denied millions of workers these basic protections. My plan would right these wrongs and help raise labor standards for all workers by:

Extending basic protections to farm workers and domestic workers: Both farm workers and domestic workers are not covered by the NLRAand not fully covered by the FLSA and the OSH Act. Some of these exclusions date back to objections from Southern segregationist politicians in the 1930s, who did not want these workers (in many cases, disproportionately women and people of color both then and still today) to have basic worker protections. These exclusions hurt millions of workers and have no justification. That’s why I will fight to pass the Domestic Workers Bill of Rights and the Fairness for Farm Workers Act, proposals that address these historical injustices. I’m also committed to ensuring that these workers have the right to organize, whether through the NLRA or some other means.

Ending worker misclassification as “independent contractors”: An “employee” has a number of rights under federal law that an “independent contractor” does not have. As a result, companies often attempt to misclassify workers as independent contractors. While rideshare companies like Uber and Lyft have attracted the most attention for this kind of persistent worker misclassification, the practice is common across a variety of industries.

This practice denies basic rights to millions of workers, and I will fight to end it as President. I strongly backed a recent law in California that will help end worker misclassification in that state, and I will push to enact a similar law at the federal level. I will also push to make worker misclassification itself a violation of labor law. And I will use every administrative tool available to end worker misclassification from the day I enter office.

Adopting a broad “joint employer” standard under the FLSA and the NLRA: Employers have certain obligations to their employees under the FLSA and the NLRA. The Trump Administration has proposed a new rule that defines “employer” very narrowly so that big companies like McDonald’s are not considered employers of the workers who work at McDonald’s franchises. This leaves many workers without the ability to bargain with — or hold accountable — the corporate entities who exercise significant control over their work. I helped lead the fight to ensure a broad definition of employer so that workers could hold big companies accountable — before Trump’s Labor Department reversed course. I will direct my Labor Department to scrap the new Trump rule and write a new one that defines employer broadly. And I will push to enact the Protecting the Right to Organize (PRO) Act, which addresses this problem in statute and empowers the millions of workers who work for franchises and subcontractors.

Narrowing the definition of “supervisor” in the NLRA so that more employees gain collective bargaining rights: The NLRA includes a broad exemption that effectively prevents “supervisors” from joining a union. The current broad definition of “supervisor” prevents millions of employees who occasionally engage in minor supervisory tasks — like charge nurses and construction foremen — from joining fellow employees to unionize. Employers can also delay union organizing by challenging whether certain employees are “supervisors.” By narrowing this category to make clear that a supervisor is someone who spends the majority of their time on supervisory tasks and exercises real managerial authority, we will give millions of additional employees the right to organize.

Clarifying that graduate students are “employees” that can unionize: In 2016, the National Labor Relations Board in the Obama Administration determined that graduate students who get paid for teaching or research are “employees” and therefore have a right to unionize. That set off a wave of unionization efforts, which I supported and encouraged. But the Trump Administration’s NLRB recently proposed a new rule reversing that Obama-era ruling. I will appoint NLRB members who would scrap the Trump rule and revive the right of graduate students to organize. And I will fight for legislation to reaffirm that graduate students are employees so future administrations cannot strip them of their rights again.

Guaranteeing public sector workers the right to organize: I will fight to enact the Public Service Freedom to Negotiate Act, which ensures that public employees can organize and bargain collectively in every state.

Expanding the rights of federal workers: My administration will immediately rescind the Trump executive orders attacking federal sector unions by restoring the ability to grieve personnel actions, preserving “official time” for unions to represent workers fully, and directing agencies to overturn the limited version of collective bargaining now in place. I will also fight to ensure that federal workers are paid continuously during government shutdowns rather than facing furloughs and no-pay status, and crack down on contracting out services and on the widespread use of temp workers. And I will ensure the right of federal workers to strike.

Ensuring employers can’t exploit undocumented workers and drive down standards for all workers: The 2002 Supreme Court case Hoffman Plastic Compounds v. NLRB held that an undocumented worker could not receive the backpay he was owed from an employer who had violated the NLRA. That 5–4 ruling is wrong and denies millions of undocumented workers redress for illegal firings or other retaliatory conduct by an employer. The case encourages employers to hire undocumented immigrants and exploit them in numerous fields, including construction and manufacturing, which could lower wages for all workers. I will fight to amend the NLRA to end this form of exploitation and ensure that all workers are protected.

Extending protections to home care workers: More than three million people work as home health aides or personal care aides, and another million more are likely to join that line of work by 2028. I will work with home care workers and their advocates to ensure equal treatment for them under our labor laws. That includes guaranteeing that all home care workers can join a union or other worker organization, creating training and certificate programs to address safety, and enforcing adequate federal nursing home staff minimum requirements. And my administration will reverse a cynical Trump-era rule that prevents home care workers that work with Medicaid beneficiaries from using paycheck deductions for health insurance contributions and union dues.

There’s plenty more about protecting the right to strike and other critical issues. Some of this is realistic in the short-term and some of it is now. But for the first time in almost forever, if either Bernie or Warren win the presidency, the needs of workers and unions will actually be at the top of the Democratic Party agenda.