If Marie Antoinette is best known for the phrase “Let them eat cake,” Trump administration Secretary of Labor Secretary Eugene Scalia may be remembered for this sentiment: “Let them catch COVID.” Not that Scalia, a former corporate attorney and son of the late Supreme Court Justice Antonin Scalia, would ever be ill-mannered enough to utter those words.
But to progressive labor rights advocates, Scalia’s stewardship of the Department of Labor (DOL) and its Office of Occupational Safety and Health Administration (OSHA) had the same effect. They contend that OSHA has done little to protect essential workers from exposure to the coronavirus.
The pandemic has added urgency to their efforts to push for reforms in the new Biden administration. The National Employment Law Project (NELP) has snagged two slots on the Biden administration’s agency review team for the labor department—Senior Counsel Patricia Smith, the chief legal adviser to two Obama labor secretaries, and Senior Policy Analyst Michele Evermore, also an Obama labor department alumna, whose background includes time on Capitol Hill.
Indeed, the 50-year-old nonprofit, whose main office is in New York City, is rich in labor experience, with more than 30 experts on multiple aspects of labor law and policy, and active on labor issues at both the state and federal level. According to its 2019-2020 annual report, NELP received nearly $7.6 million in grants. Major funders in the past two years have included the Rockefeller Foundation, the James Irvine Foundation and the Public Welfare Foundation.
NELP has plenty of progressive allies in this fight, among them both the AFL-CIO and SEIU, as well as the National Women’s Law Center, the Leadership Conference for Civil and Human Rights, the Center for American Progress, Farmworker Justice, the Economic Policy Institute, the Center for Law and Social Policy and the National Partnership for Women and Families.
NELP Director of Government Affairs Judy Conti not only has a list of reforms labor advocates are pushing for, but she’s also calling on the president-elect to make a difference for workers on his first day in office.
What to do on day one
The Biden White House must “issue an emergency temporary standard to protect all workers from COVID exposure, one that all employers have to follow,” Conti says. That standard must replace the “politically influenced voluntary guidance we have now that talks about safety precautions ‘when feasible,’ or ‘if possible.’ COVID safety has to be the subject of mandates. Period.”
Issuing a standard this fast would be doable, Conti insists, because the Biden White House could build on regulatory work the Obama administration had already completed. The Obama administration standards on infectious diseases could “have been easily adapted and released” by the Trump administration,” she says. “So, a lot of that work is done. And there are people looking at what more needs to be done in order to finalize [an emergency temporary standard] and have it ready for day one.”
Any standard, she acknowledges, can be challenged in court. But that’s why this standard “would have to be drafted with an eye toward potential legal challenges, and shoring up against those. I’m quite certain there are people digging into that right now.”
The urgent response is necessary, Conti says, because workers continue to be in danger from the pandemic, and the Trump White House response has been to turn the DOL into “a safe haven for corporate America.” Not only are workers continuing to contract coronavirus on the job, but lax rules and enforcement have also helped spread the virus throughout communities, she says. Infected workers transmit the disease in the workplace and also infect their families, potentially causing COVID-19 to spread through an entire community, Conti says. “We have known since time immemorial that worker health is public health. This crisis has proven that beyond any reasonable doubt.”
The impact of Trump administration inaction
The Trump DOL quickly clashed with advocates over worker safety soon after the pandemic began in the U.S. On April 28, in a strongly worded letter, AFL-CIO President Richard Trumka asked Scalia to require employers to furnish essential workers with personal protective equipment and impose social distancing rules. The agency’s response to date had been “delinquent, delayed, disorganized, chaotic and totally inadequate,” Trumka charged, including a list of more than 300 union workers who had already succumbed to COVID-19.
Scalia refused Trumka’s request. He responded that a mandate was not necessary, since employers were already required to keep the workplace safe from hazards. Indeed, when the AFL-CIO sued OSHA to issue an enforceable standard to prevent COVID exposure in the workplace, the DOL fought the union in court, and ultimately won. “It’s pretty despicable,” Conti says.
As of early November, OSHA had received more than 10,000 COVID-related complaints and issued citations to fewer than 200 companies. “They’re just ignoring or summarily dismissing the overwhelming majority of complaints they get in the COVID era about unsafe workplaces,” Conti says.
Getting good people to run the Department of Labor
As urgent as the COVID-19 safety mandate is, Conti also calls for “getting somebody in there right away to start turning the agency around,” filling staff vacancies, “taking seriously the claims of unsafe workplaces and retaliation” of whistleblowers, and investigating those complaints, and “issuing appropriate fines for the severity of what’s going on.”
Who should hold the top jobs at DOL? “We’re putting forward specific names for a lot of specific positions,” including labor secretary and OSHA head, as well as people who “would be great utility players” in a variety of positions, Conti says, adding that NELP prefers to submit that list to the Biden transition team rather than reporters. But she’s clear about the qualities these top jobs demand. “There isn’t a name we are suggesting that isn’t widely familiar and popular in the workers’ rights world,” she says.
A new labor secretary would do well to espouse the qualities of DNC chair and Obama-era labor head Tom Perez, Conti says: “Smart as a whip, able to delegate, inspiring good people … to work hard and work aggressively.” A secretary must “pay really good attention to detail” given the complexity of the administrative regulatory process, but also be able to avoid being “paralyzed by detail and complexity.” The next secretary also must “move as aggressively as the law allows to protect workers and reset the balance of power between workers and employers,” she says.
An OSHA administrator must “understand how the agency works because we don’t have time, the stakes are too high, for somebody that has a big learning curve,” Conti says. “Somebody has to know the OSHA law intimately … and can get in there day one and start turning things around.” This individual must also be “passionate about worker health and safety,” she says, adding that it is crucial that the new head “understands the importance of centering workers of color,” particularly Black and Latino workers, because they are the most vulnerable.
But the DOL deputy secretary is also important, Conti says. The labor secretary makes “a lot of public appearances” and “has to do a lot of the public-facing work” of the agency. “There needs to be somebody in the office that makes all the trains run on time and coordinates everything.”
Trump policies also jeopardize workers
Even if there were no pandemic, Biden appointees would have a full plate undoing the Trump administration’s damaging policies, advocates say. One Trump regulatory proposal that must be blocked, Conti says, concerns the definition of a worker as an independent contractor. The rule, which is close to being finalized, would make it easier for an employer to classify an employee as an independent contractor. It has been opposed by 23 Democratic Senators, who have charged that the new rule would “contribute to stagnating wages and exacerbate economic inequality for American workers, particularly workers of color.”
Twenty-four state attorneys general also opposed the rule, saying it would make it much harder to protect workers from unscrupulous bosses.
“I can’t stress more strongly how dangerous that regulation would be because it would give employers the license to turn so many jobs that are now held by employees into independent contracting jobs,” Conti says. “So, there’d be no benefits, no workers comp, no [health] insurance, no unemployment insurance, no civil rights protections, no guarantee of minimum wage or overtime. It’s really an atrocity.”
If that rule is implemented, Conti warns, “it could mean the degradation of job quality for tens of millions of workers in industries across the whole range of the workforce.”
