As part of a series examining the first 100 days of the Biden presidency, Harvard Law Today asked Professor Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at Harvard Law School and co-director of the Labor and Worklife Program, to tell us if the Biden administration is keeping its promises on labor and employment, how it’s doing — and what problems it may encounter down the road.
Harvard Law Today: What do you think of the Biden administration’s announced agenda?
Benjamin Sachs: President Biden is being hailed as the most pro-union president in a generation, and I’m optimistic that this may be an accurate characterization. At bottom, the administration’s commitment to union organizing is a commitment to building an economy and a politics that are far more equitable than the ones we have today. And it’s not just about unions. It’s about ensuring that all working people have access to living wages, safe and healthy workplaces, fair treatment at work, and a voice in shaping their terms and conditions of employment. This is an agenda the country badly needs.
HLT: What have they done right so far?
Sachs: The president has made some terrific moves on the appointments front, including bringing people on board who have deep knowledge of the ways labor and employment law and policy can contribute to building a more equitable economy. Several of these amazing people worked with Harvard Law School’s Labor and Worklife Program’s Clean Slate Project, through which we sketched out an ambitious vision for labor law reform, and their appointments make me especially optimistic. For example, Sharon Block, the former director of Harvard’s Labor and Worklife Program, is now acting administrator of the Office of Information & Regulatory Affairs (OIRA); Seema Nanda has been nominated to be solicitor of labor; Raj Nayak to be the Department of Labor’s assistant secretary for policy; and Jennifer Abruzzo to be the general counsel of the National Labor Relations Board (NLRB). The president has also removed some problematic appointees from the previous administration, including Peter Robb, the former NLRB general counsel who was not advancing the interests or rights of workers.
I’m also encouraged by the administration’s support of the Protect the Right to Organize Act (PROAct), which — although not as far reaching as what Clean Slate proposed — would dramatically improve U.S. labor law and give workers a fairer shot at organizing unions and engaging in collective bargaining with their employers. The administration’s decision to include the PROAct in the American Jobs Plan — the infrastructure plan — shows that its commitment to the Act is real. And, although the union election at Amazon’s Bessemer warehouse did not come out the way I’d hoped (or the way it likely would have come out if we had a fairer labor law), the president still deserves significant credit for his decision to support publicly the workers’ right to unionize.
HLT: What have they gotten wrong?
Sachs: Not a lot. If there’s one thing I’m most disappointed about it’s the fact that we still don’t have an Emergency Temporary Standard on COVID-19 from the Occupational Safety and Health Administration. That was a priority for the opening days of the administration, it remains an acute need for American workers, and it’s a shame that the standard still has not been announced. But there’s encouraging news in recent days on this front, and I expect that we’ll have a standard before too much longer.
HLT: What should they do going forward?
Sachs: The administration has proven — with the COVID relief law, the infrastructure plan and the climate plan — that it’s willing to think very big and propose transformative policies. In my view, we need such transformative thinking on the labor law front too. As any observer of U.S. labor law well knows, our current system is in crisis and has been for decades now. In our Clean Slate report, we (with the help of three hundred experts from around the country and the globe) laid out a vision for the kind of fundamental labor law reform that’s needed today. Many of the pieces of this reform agenda are contained in the PROAct, but some of the most important elements are not.
Primary among these, the Clean Slate report shows why we should be moving in the direction of combining a new system of sectoral bargaining with the type of workplace-based union organizing that we’re familiar with in the United States. Sectoral bargaining, prominent in many countries across the world, means simply that collective bargaining takes place at the level of an industry (say, fast food) rather than just at the level of a particular employer or worksite (say, the McDonalds on Mass Ave.). For this reason, sectoral bargaining does a much better job capturing the kind of work relationships that exist in our fissured economy, and it reduces the perception that unionization implies competitive disadvantage — a perception that plagues our current system and fuels a great deal of the intense opposition to unions that’s prominent among U.S. firms.
I would encourage the Biden administration to consider the types of transformative reforms that Clean Slate proposed. The administration just announced the formation of a new task force, chaired by Vice President Harris and charged with making recommendations for promoting worker organizing. The task force could be an ideal place to consider the types of additional reforms that we need.
HLT: What are the biggest challenges they face?
Sachs: To state the obvious, the filibuster stands as an obstacle to many badly needed reforms. But there are ways of making progress in labor policy even without new federal legislation. The administration is already using executive orders and federal procurement policy in important ways. And, when they get appointed, new members of the National Labor Relations Board will be able to do important work as well. I would suggest, also, that the administration explore ways to empower states and cities to experiment and innovate in the field of labor law. This is a complicated thing to accomplish given the strictures of federal labor preemption law, but there are steps the White House and the NLRB can take to enhance local governments’ ability to build up from the federal floor and increase protection for worker organizing.