Worker Groups Prep for Active Clinton Labor Department

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By Ben Penn

Nov. 1 — The presidential race still hasn’t been decided, but worker advocates are already springing into action in anticipation of what could be four more years of Democrats in the White House and at the helm of the Labor Department.

Left-leaning policy organizations and think tanks, some working in concert with labor unions, are now fine-tuning their top requests for the next Labor Department ahead of transition meetings that begin after the election, leaders of six such groups told Bloomberg BNA in interviews the past two weeks.

Some proposals aren’t fully fleshed out, including more federal contractor executive orders, while others repeat detailed pitches that Obama’s DOL didn’t get to, such as updating the duties test for overtime exemption, compensating workers for on-call shifts and overhauling unemployment insurance benefits. The wish-list items share one common thread: the labor movement and its policy arms are pleased with Labor Secretary Thomas Perez’s leadership, but want continuity under Clinton to fill in some gaps on worker protections.

Advocates from the Economic Policy Institute, National Employment Law Project and others will also be asking the next administration to protect freshly finalized regulations from Republican and business interference. This includes a rule to expand overtime pay access to some 4.2 million workers that takes effect 23 days after the election, but faces ongoing litigation and legislation to halt it.

The worker organizations, whose views help shape Democratic administration workplace agendas, aren’t assuming a Clinton win and their strategies could also hinge on congressional balance and White House and Cabinet personnel choices. Still, their words preview the major plans a new administration might consider for the DOL once the agency transition efforts launch in earnest next week.

“If Hillary Clinton wins, I think given the priority that she’s given to wages and working conditions and workplace fairness and equality during the campaign, I feel certain that they’ll do that work,” said Vicki Shabo, referring to the next Labor Department. Shabo is vice president of the National Partnership for Women and Families. “My only concern is simply around person power and the time it takes to get new people into positions and get them up to speed,” she told Bloomberg BNA.

“I think advocates like us are more than happy to be sources of information and provide technical assistance and input on where work is needed,” said Shabo, whose organization helps frame paid leave and equal pay policies.

Worker advocates would consider outreach to a Trump transition, too, but the exact strategy is tough to determine.

“Donald Trump does not have a record in public office that we can look at to determine with any certainty the policies he would pursue in office with respect to working people,” Sarita Gupta, executive director of Jobs With Justice, told Bloomberg BNA. “So our approach would be different in the sense that we would have to figure out where Trump stands on the issues.”

A New Contractor EO?

Worker advocates will be looking to offer advice on how to effectively implement and enforce new regulations requiring broader overtime eligibility, providing paid sick leave for federal contractor employees, and mandating that contractors disclose labor violations. But they also see a chance to use those DOL rules as launching off points for new policies that weren’t fully addressed under Obama.

Advocates said even though they’ll ask for the effective implementation of the Fair Pay and Safe Workplaces executive order requiring federal contractors to report labor violations, they see room for stronger standards on contractor labor policy.

“There’s lots to be done in terms of implementing rules that Obama has moved forward on; we want to see the next administration be quite serious about that,” Karla Walter, who directs the American Worker Project at the Center for American Progress, told Bloomberg BNA. “They need to start thinking about other types of spending that they can attach standards to, to raise standards for workers.”

Walter is referring to a new model to lift efficiency in federal procurement, perhaps one that entails steering contracts to companies that meet minimum workplace standards. But she’s not married to the model employer or high-road contracting executive orders that were suggested to Obama’s transition team. “We’re not limiting ourselves to existing thinking, and we’re trying to really be imaginative and think through different possible levers” to govern federal contractor standards, the CAP project director said.

CAP’s founder is John Podesta, Clinton’s campaign chairman, and the think tank’s current president is Neera Tanden, who co-chairs the Clinton-Kaine transition project.

Wish-List Specifics

CAP and its allies are still finalizing their wish lists, and some of the organizations will be publicizing their recommendations in more detail after the election. The groups’ senior officials outlined the following requests they’d like to put before the DOL transition staff:

  •  The Economic Policy Institute would propose that the next administration boost the DOL enforcement budget, Ross Eisenbrey, vice president at EPI, told Bloomberg BNA. But looking more into the future, he said he’s also hopeful that the DOL would overhaul unemployment insurance so that state benefits increase and the nation is better prepared for the next recession. Eisenbrey noted that two members of Clinton’s transition team are former EPI employees, including the transition project’s chief economist, Heather Boushey.
  •  The National Employment Law Project would like the next DOL to consider updating the Fair Labor Standards Act duties test to broaden overtime eligibility to even more workers by adjusting the FLSA’s duties test that exempts workers from overtime pay, Judy Conti, NELP’s federal advocacy coordinator, told Bloomberg BNA. Earlier in the rulemaking process, the agency mulled adopting a quantitative test that an employee must spend at least 50 percent of his or her working time performing exempt job duties to be deemed ineligible for overtime pay. But ultimately, DOL opted to double the salary threshold for exemption, leaving the duties standard intact.
  •  Several pro-worker stakeholders mentioned the excitement about working with a Clinton administration on fulfilling her campaign promise of providing more workers with paid family and medical leave benefits. This could include a paid family leave EO, Conti suggested. Or paid leave could be packaged into a broader order that awards points in the procurement process to companies that meet certain workplace conditions, Shabo said.
  •  An advocate from another worker rights organization, who requested anonymity, said there will be a strong push for DOL to speak about the need for more employers to provide predictable schedules with proper advance notice and wages for time spent on call. While true movement on this issue is held up in Congress, several organizations plan to ask the DOL to use the power of the bully pulpit to encourage state and local legislation, similar to what Perez has done for minimum wage and paid leave.
  •  Gupta of Jobs With Justice emphasized the need for DOL’s transition team to think carefully about staying up-to-speed with the modern economy. “We hope a new administration will continue to look at updating regulations and enforcement policies, really to look at the rise in the contingent workforce and on-demand work,” Gupta told Bloomberg BNA.
  •  The advocates may find a DOL transition staff more focused on a legislative agenda than on regulation, at least in the president’s first few years. Therefore, transition conversations will also entail how DOL should fit in with some of the next administration’s legislative focal points. Gupta anticipates DOL will factor significantly into the immigration reform talks, particularly around engagement with corporations in their treatment of immigrants without permanent visa status, she said.

Further, if Congress passes an infrastructure bill in 2017, creating many government-funded construction jobs, the DOL would be busy overseeing workforce training and employee rights aspects of implementation. Expect that to come up during the transition stakeholder meetings as well, several sources said. “I think that there’s a long history of the federal government upholding high standards on infrastructure jobs, through construction jobs and” Davis-Bacon Act enforcement, Walter said. “We’re definitely talking through what does an infrastructure bill mean for working people,” she said.

Bloomberg BNA requested comment from several unions for this story, but didn't get a reply.

Employers Look to Engage DOL

The business community will also be communicating with the DOL transition team, regardless of which party is in power. The National Retail Federation, one of the groups steering opposition to the agency’s landmark overtime regulation, is hoping for a less adversarial relationship with the next agency.

“Unfortunately, the current Labor Department has become an ideological battleground and employer views have not been well received,” David French, senior vice president of government relations at the NRF, told Bloomberg BNA. “Our hope is that the next Labor Department, whether it’s Clinton’s or Trump’s, will have a more constructive opportunity for engagement with the employer community.”

Clinton to Offer Advocates `Open Ears.’

With Clinton holding a narrowing lead over Trump in most national polls, labor proponents are eager to leverage a third-consecutive Democrat-controlled White House—the first time they would witness such continuity since the 1940s. Trump hasn’t laid out a DOL agenda, but his anti-regulatory rhetoric suggests a far more hands-off approach that wouldn’t seriously consider the worker advocates’ recommendations.

Both candidates announced their initial transition project staffs over the summer. After the election, the winner is expected to unveil a much longer list of transition appointees, including review teams for each federal agency that meet with the outgoing departments and stakeholder groups.

Much remains unsettled in terms of which DOL policies Clinton’s agency review staff will want her to implement in the first 100 or 200 days, as opposed to focusing on legislation. For instance, paid family and medical leave is an issue that advocates think could be mandated via executive action, but they’d prefer to see Congress move on it first.

Far more clear is that the former secretary of state and first lady’s track record indicates the worker-focused organizations have a solid shot at exerting influence.

“Secretary Clinton has long-standing, very close relationships with people in the labor movement, labor leaders, and worker advocates, and she has a number of senior advisers who have even deeper relationships with think tanks and advocacy groups,” Seth Harris, who served on Democratic transition teams in 2004 and 2008 and had senior DOL roles under Presidents Barack Obama and Bill Clinton, told Bloomberg BNA.

“So I would expect that those groups would find open ears at the highest levels of a Clinton transition and a Clinton administration, and that they will be able to offer valuable insight and information for the administration to move forward on a progressive worker agenda,” said Harris, now a law professor at Cornell University and an attorney with Dentons in Washington.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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