How a Biden Labor Board Could Advance Workers’ Rights

Expanding the Range of Workers Protected by the NLRA

During the Trump administration, both the Department of Labor (DOL) and the NLRB made it harder for workers to organize by redefining the terms “independent contractor” and “joint employer.” In two decisions, the NLRB changed its independent-contractor analysis in a manner that resulted in excluding large groups of workers from coverage under the NLRA. Rather than giving due attention to the control exercised by employers over the jobs performed by independent contractors, the Board overemphasized the workers’ “entrepreneurial opportunity” for business gain or loss. That is, it focused on the opportunity of a worker to operate a business rather than on whether the worker actually operated an independent business. The Trump Board also ruled that it is not unlawful for employers to misclassify its employees as independent contractors, creating a perverse incentive for employers to skirt their legal obligations. ⁵ The National Employment Law Project conservatively estimates that up to 30 percent of employers misclassify their employees as independent contractors, and that millions of workers nationally are misclassified. ⁶

. . . [U]p to 30 percent of employers misclassify their employees as independent contractors, and . . . millions of workers nationally are misclassified . . .

In its 2020 joint-employer rule, the Trump NLRB took an overly mechanistic and narrow view of the relationship between separate companies that each plays a role in determining working conditions. This has made it difficult to hold an entity liable if it does not directly employ workers. ⁷ The rule narrowed the Obama-era NLRB’s standard, which had considered indirect control of the alleged joint employer over working conditions and its reserved control (e.g., where a contract between the employers provides that the alleged joint employer may require the direct employer to take certain actions, such as discharging a worker). ⁸

It has been estimated that workers will lose $1.3 billion a year in wages because they are not able to bargain with a joint employer that co-determines essential terms and conditions of their employment.

The Trump NLRB’s joint-employer test has made it especially difficult for low-wage workers to organize in “fissured workplaces,” ⁹ where employers outsource work while retaining considerable control over certain terms and conditions of employment. These arrangements have become an increasingly common way for employers to avoid responsibility for workers and liability for labor law violations. It has been estimated that workers will lose $1.3 billion a year in wages because they are not able to bargain with a joint employer that co-determines essential terms and conditions of their employment. ¹⁰

For example, Amazon outsources its package delivery operation to small delivery contractors who employ the drivers. These contractors work almost exclusively for Amazon and directly employ the drivers. However, Amazon requires the contractors to employ the drivers as “at will” employees—employees who can be dismissed without cause. Amazon itself sets myriad employment rules for the drivers and retains the sole right to unilaterally change the rules. These rules—and practices—include strict delivery standards, drug testing, and Amazon-approved training. Amazon also requires drivers to comply with its personal grooming rules. The company restricts driver social media posts and has installed surveillance cameras in delivery vans to monitor drivers. ¹¹ Even though Amazon exercises this broad control over the work of the drivers, it maintains that it does not jointly employ the drivers and thus has no liability for claims of wage theft or responsibility toward victims hurt in vehicle accidents with package delivery drivers.

The DOL has already withdrawn the Trump-era interpretation of independent contractor and initiated the process for reversing the test for determining joint-employer status under the Fair Labor Standards Act. ¹² Now that the NLRB has a Democratic majority, it must quickly revisit the definitions of independent contractor and joint employer to cover the many workers who are currently denied the Act’s protection. A narrow interpretation of “independent contractor” and a broad test for “joint employer” accord with the purpose of the NLRA: to “encourag[e] the practice and procedure of collective bargaining” and “protect[] the exercise by workers of full freedom of association.” ¹³ Utilizing this guiding principle, the Biden Board could help redress workers’ unequal bargaining power with the companies that determine their working conditions.

The Rights of Union and Non-Union Workers to Advance Their Interests

The NLRA protects not only the right to organize or join a union, but also other “concerted activities” employees engage in for the purpose of “mutual aid or protection,” ¹⁴ such as talking to coworkers about wages or working conditions, raising shared workplace complaints with a supervisor, or walking off the job to protest working conditions. The law protects these activities because they tend to advance workers’ collective interests and may lead to other forms of workplace organizing. In several cases, the Trump NLRB made it harder to prove that employees were engaged in protected concerted activity. It narrowed the definition of concerted activity to exclude statements made by an individual employee in group meetings for the purpose of inducing coworkers to act in protest over their working conditions. ¹⁵ As a result, some workers like those at Hornell Gardens nursing home in Hornell, New York who raised concerns about workplace health and safety during the Covid-19 pandemic found their unfair labor practice charges dismissed. ¹⁶

In a case involving a worker at a General Motors plant, the Board overruled long-established precedent that protected profane or offensive statements made during heated workplace disputes over working conditions. ¹⁷ The Board and the courts have recognized the imbalance of power between workers and their employers and acknowledged that because disputes over wages and working conditions “are likely to engender ill feelings and strong responses,” ¹⁸ workers’ use of impulsive profanity toward their supervisors is protected. ¹⁹ Yet the Trump NLRB denied protection to a Black union representative, who was suspended for allegedly racially hostile and personal attacks on his supervisor. During a dispute over training and assignments, the worker responded to a supervisor’s claim that he was speaking too loudly by stating, “Yes, Master . . . is that what you want me to do?” He also said that the supervisor wanted him to be a “good Black man.” In denying protection to the worker, the Trump Board stated that abusive speech and conduct were not protected and that employers should be able to expect employees engaging in concerted activity to do so with “a modicum of civility.” ²⁰ This decision disregards unequal workplace power relations and potentially muzzles workers by leaving it up to employers, based on their own biases, to decide what conduct is “uncivil.” ²¹

[Trump NLRB] decisions placed an unwarranted emphasis on employer property rights at the expense of employees’ rights.

Finally, in a trio of decisions in 2019, the Trump NLRB made it more difficult for union organizers and off-duty workers to engage in protected activity by creating restrictions on access to employer property. Two of these decisions were inconsistent with long-standing Board precedent that allowed union representatives access to areas of an employer’s property that are open to the public. ²² The third decision denied off-duty employees of a contractor access to the property where they worked when they attempted to distribute informational leaflets to the public about managerial decisions that threatened their job security. ²³ These decisions placed an unwarranted emphasis on employer property rights at the expense of employees’ rights.

. . . [U]ntil Congress passes the PRO Act, . . . the labor movement needs a Democratic-majority NLRB to “adapt the Act to changing patterns of industrial life.”

A Biden Board must restore earlier precedent that protected a broad range of worker activity aimed at improving working conditions or obtaining union representation. One promising early indication is that Peter Sung Ohr, Acting General Counsel of the NLRB, who replaced the Trump General Counsel, issued a guidance memorandum emphasizing the importance of construing the Act’s protections broadly. ²⁴ The memo emphasized that the purpose of the Act is to protect employees’ “fundamental right” to organize unions and urged NLRB Regional Offices investigating unfair labor practice charges to pay particularly close attention to cases involving protected concerted activity (especially cases involving worker protests about health and safety and racial justice issues). The Acting General Counsel’s office also released a memorandum concluding that workers who participated in the “Day Without Immigrants” action—a protest against the government’s crackdown on undocumented workers and the possible revival of workplace immigration raids—had engaged in activities for “mutual aid or protection” under the Act. ²⁵ Such an interpretation would help ensure that workers are fully protected when they speak up about issues that affect them in the workplace, even if those issues are also connected to broader social and political struggles. ²⁶

Union Organizing and Elections

The Trump Board rolled back significant portions of an Obama-era rule intended to streamline the union election process and reduce extended delays that can deny workers a timely vote. ²⁷ In addition, the Trump Board changed the law affecting what constitutes an appropriate bargaining unit, giving employers additional ammunition to deter organizing. ²⁸ The Biden Board should immediately pursue rule changes to reduce delays between when workers file an election petition and when they vote. The Board should also return to the prior standard for determining an appropriate bargaining unit, which focused on the rights and interests of workers seeking union representation rather than those of workers outside the petitioned-for unit. ²⁹ Electronic voting, which is already used in union elections conducted by other federal agencies, is another way to ensure that workers have the opportunity to vote in an expeditious manner. ³⁰

Affirming the Employer’s Duty to Bargain with the Union

The NLRA was enacted to protect the right of workers to organize and to “encourag[e] the practice and procedure of collective bargaining.” ³¹ Collective bargaining not only encompasses the negotiation of a collective-bargaining agreement, it also prohibits employers from unilaterally altering terms and conditions of employment beneficial to workers that are not specifically covered in the agreement. In two decisions, MV Transportation, Inc. (2019) and Raytheon Network Centric Systems (2017), the Trump Board gutted decades of Board and court decisions, making it easier for employers to alter certain employment terms without bargaining with the union. During the Covid-19 pandemic, employers seized on these decisions to justify making unilateral changes that affected workers’ health and safety without bargaining. ³² These decisions undermine collective bargaining and must be reversed.

The Labor Movement Needs a Democratic-Majority NLRB that Will Protect Worker Rights

In the past few years, union organizing has steadily increased, even in industries with no history of unionization, like digital media and software. We have also seen unionized workers demand to bargain and strike over matters important to the communities they serve, from healthcare workers demanding safe staffing to teachers demanding more counselors, funding for low-income housing, and removing police from schools. At the same time, non-union workers have walked off the job to fight for a $15 minimum wage, to protest unsafe working conditions, to demand adequate personal protective equipment, and to take a stand against sexual harassment and racial injustice. Workers engaged in such organizing efforts are protected from retaliation under the NLRA. As many commentators have noted, the NLRA has significant limitations. But until Congress passes the PRO Act, which would grant critical protections for workers, the labor movement needs a Democratic-majority NLRB to “adapt the Act to changing patterns of industrial life.” ³³ Most important, the Board needs to interpret the NLRA as Congress intended: to encourage collective bargaining and protect the rights of workers to organize a union or join together to demand better working conditions.