Trump and the State of Workers in America: A 2018 Labor Day Reflection

During his presidential campaign, Donald Trump repeatedly proclaimed that he would help workers. He even boasted, “I have great relationships with unions.” But actions taken by the Trump administration have directly targeted workers and labor unions.

Read his acts, not his lips

The anti-labor attack gained momentum in the last weeks of 2017. President Trump had to wait until his two nominees to the five-member National Labor Relations Board were confirmed.

Those new members flipped the board’s majority from Democrat to Republican. And then the NLRB, which oversees collective bargaining law and enforcement of U.S. labor laws and standards, quickly issued a slew of key decisions that rolled back a number of worker- and union-related reforms.

Example No. 1

In one of the most important changes, the NLRB reversed a 2011 ruling that helped workers form smaller unions within a single larger workplace.

The precedent set during the Obama years had allowed the holding of a union election without including all the different types of jobs and occupations within that business who don’t share similar job duties, wages and working conditions.

Employers complained that it led to “micro unions.” In this specific case, after 100 welders unionized at a large manufacturing plant, the NLRB ruled that the smaller organizing unit was illegitimate since any union election would have to include all 2,500 workers at the company, spanning 120 job classifications. The board ruled 3-2 along partisan lines.

Example No. 2

Another consequential case was decided in a way that will hurt low-income fast food workers. The board overturned a major 2015 decision that had ruled employers are responsible for bargaining with workers, even if they have only indirect control over those workers’ employment.

Fast-food companies like McDonald’s license smaller franchise businesses to run most of their restaurants. McDonald’s instructs these franchises on how to operate, but leaves them to control many aspects of their day-to-day business.

For decades, franchise employees who wished to bargain collectively were caught in a vicious trap. Their boss, the franchise operator, could insist that McDonald’s controlled the terms of their employment. But if they tried to bargain with McDonald’s, the company would insist that the franchise operator was their true employer. Catch 22.

In the Obama years, the NLRB sensibly solved this problem by clarifying that companies like McDonald’s are, jointly with franchise operators, employers of these workers and can be forced to the bargaining table.

This new standard permitted much more meaningful collective bargaining among millions of low-wage workers. Longer term, that ruling on joint employers would have improved dramatically the collective bargaining rights in the fast-food industry.

But the GOP majority on the NLRB scrapped this standard, returning to an old, stringent policy that requires employers to exercise “immediate and direct” control in order to be liable under labor law.

Other damaging decisions by Trump’s NLRB include:

• reversing a 2004 decision bolstering workers’ rights to organize free from employer interference;

• reversing a 2016 decision safeguarding unionized workers’ rights to bargain over changes in employment terms:

• overturning a 2016 decision that required settlements between employers and employees to provide a “full remedy” to aggrieved workers, instead of partial settlements;

All of these decisions were made on a narrow 3–2 basis, with Republicans in the majority and Democrats dissenting.

Trump’s Labor Department enters the game

But the NLRB is only one federal agency. Trump’s Labor Department also has rolled back several rules and executive orders that the Obama administration issued to protect workers.

Those include the Fair Pay and Safe Workplaces rule, which required companies bidding for large federal contracts to disclose and correct past labor and safety violations.

Another rescinded rule established guidelines for when states can drug-test applicants for unemployment insurance benefits. Also rescinded was the “persuader rule,” which required law firms to publicly disclose any work they do for employers trying to fight against union organization efforts.

More dismantling of modest labor rights

Meantime, OSHA, the federal agency Occupational Safety and Health Administration, has delayed three workplace safety rules issued during the last year of Obama’s presidency.

Those required certain employers to submit injury and illness data electronically to OSHA for publication on the agency’s website; tightened exposure standards for silica, which is often breathed in by certain construction workers and linked to lung disease; and weakened workplace exposure limits for beryllium, an industrial mineral linked to lung cancer.

Next: The U.S. Supreme Court

Another significant workplace issue, which is pending before the U.S. Supreme Court, is whether employers may require workers to sign arbitration agreements that waive their rights to file class or collective action lawsuits.

Last June, Trump’s acting solicitor general filed a brief with the court that took the opposite stance from the Obama administration, asserting that mandatory arbitration agreements do not violate the National Labor Relations Act and are enforceable under the Federal Arbitration Act.

One important ruling from the Obama administration had to do with which workers were eligible to receive overtime pay.

The Obama rules required nearly everyone paid less than $47,476 a year to be eligible for time-and-a-half over time pay when they worked more than 40 hours a week. That was a big jump from the $23,660 threshold in place since 2004, and a cornerstone of the Obama administration’s efforts to lift wages.

But a federal judge in Texas blocked that rule a week before it was scheduled to take effect, and Obama’s Labor Department appealed. However, Trump’s Labor Department filed a brief in federal appellate court indicating it will not advocate for these overtime changes.

Decimating the Department of Labor

In addition to all that, the Trump administration has proposed $2.6 billion in budget cuts – an enormous 21% — to the U.S. Department of Labor.

Those cuts include a proposed elimination of four department programs and their services, such as training for worker safety and for migrant farm workers.

The budget also seeks to significantly slash funding for Job Corps, a program that provides job training to disadvantaged youth, by $407 million, or 24%.

Trump’s hatchet job

Typically, when the U.S. government shifts from a Democratic presidential administration to a Republican one, such as the previous one of Barack Obama to Trump, a certain amount of pro-business policies and erosion of labor rights is expected.

However, many labor experts say that the presidency of Donald Trump has led to a repeal of Obama administration regulations that is unprecedented. In addition, Trump is proceeding faster than is typical under a new GOP administration.

In just over a year and a half as president, Donald Trump has wiped away a number of the modest policy gains that organized labor made during the Obama years. The nominees he chose to fill crucial regulatory roles already are making it more difficult for workers.

Taken together, Trump’s and his associates’ blizzard of decisions will hurt millions of workers in the United States and weaken their abilities to unionize and bargain collectively.

Trump is just the latest nail in a slowly closing coffin that has been in process for a couple of decades. It’s time for U.S. labor unions to try new tactics.