Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Monday, February 7, 2022, the White House Task Force on Worker Organizing and Empowerment (Task Force) released its long-awaited Report detailing nearly 70 recommendations for revising our nation’s labor laws and regulations. The recommendations put forth by the Task Force, which are specific to federal contractors and private employers, represent President Biden’s commitment to being “the strongest labor president you have ever had.” The recommendations in the Task Force Report were developed in collaboration with over 20 executive agencies, departments, and White House offices.
By way of background, on April 26, 2021, President Biden signed Executive Order (EO) 14025: Worker Organizing and Empowerment, which established the Task Force. The Task Force was directed to: “identify executive branch policies, practices, and programs that could be used, consistent with applicable law, to promote [the] Administration’s policy of support for worker power, worker organizing, and collective bargaining.”
As set forth in the Report, the Task Force developed its recommendations around three stated goals:
- Position the federal government as a “model actor”;
- Use the federal government’s authority to support worker empowerment by providing information, improving transparency, and making sure existing pro-worker services are delivered in a timely and helpful manner; and
- Use claimed authority to leverage the federal government’s purchasing and spending power to support workers who are organizing and pro-worker employers.
The Task Force broke down its laundry list of recommendations into four broad categories:
- Federal Employees: Making the Federal Government a Model Employer;
- All Employees: Increasing Visibility, Support, Awareness, and Promotion of Collective Bargaining;
- All Employees: Ensuring Effective Enforcement of Existing Laws; and
- All Employees: Developing Research and Collecting Data to Advance Policy About Worker Organizing and Empowerment.
Much of the Report targets federal contractor employers. Below are some of the Task Force’s notable recommendations:
Encourage Project Labor Agreements and Union Apprenticeship Programs
- The Task Force seeks to encourage the use of Project Labor Agreements (i.e., project-specific collective bargaining agreements) on projects receiving federal assistance from the Treasury, the Environmental Protection Agency, Department of Transportation, Department of Commerce, Department of the Interior, and Department of Veterans Affairs.
- Similarly, the Task Force suggests issuance of an executive order that, consistent with applicable law, would establish targets or preferences for the use of registered apprenticeships and training for recipients of federal funds. The Report also highlights that unions are eligible grantees of American Rescue Plan “Good Jobs Challenge Funds,” which may be used for starting or scaling apprenticeship programs.
Undertake Davis-Bacon Regulatory Reform
- The Task Force recommends that the Department of Labor (DOL) prioritize review of Davis-Bacon and Related Acts regulations, which generally require contractors – both union and non-union – on federal and federally-funded contracts to pay consistent wage standards.
Improve Transparency of Anti-Union Campaigns by Employers
- The Task Force recommends that the president of the United States (POTUS) instruct the DOL to strengthen its rules and enforcement with respect to the Labor Management and Disclosure Act “persuader rule.” Generally, the persuader rule requires labor consultants and employers that hire them to file reports with the Office of Labor Management Standards detailing the nature of the persuader activity and monies spent. Related, the Task Force also recommends that federal contractors that file persuader reports must disclose they are a federal contractor so that federal contracting agencies are aware of the reports and ensure that federal monies are not spent on persuader activities, consistent with a 2009 executive order.
Facilitate First Contracts for Employees who Organize
- Under current law, private parties are not required to reach a collective bargaining agreement within any particular time frame, if at all. The Report states POTUS should instruct the Federal Acquisition Regulatory Council to, among other things, require contractors to undergo training and mediation through the Federal Mediation and Conciliation Service (FMCS).
- The Report also states that POTUS should encourage the National Labor Relations Board (NLRB), FMCS and Federal Labor Relations Authority (FLRA) to offer the FMCS’ services in mediating a first contract and training in first contract negotiations.
Encourage Outreach and Training
- According to the Report, POTUS should strongly encourage the NLRB, FLRA, FMCS, and National Mediation Board (NMB) to prioritize expanded outreach at the national and regional levels, particularly to young workers and underserved communities, and post updated, visible, and accessible materials on agency websites and social media platforms about workers’ organizing and bargaining rights.
- The Report also recommends that the General Services Administration (GSA) should facilitate training or listening sessions for federal contractors’ employees about the benefits of collective bargaining and unions. GSA may use speakers from local unions, labor councils, and other labor organizations, and provide access to GSA’s existing platforms such as Industry Day, fairs, and conferences, when possible. At the same time, the Report criticizes employers’ use of captive audience meetings and labor consultants to educate employees about the benefits of remaining union-free.
Prevent and Address Worker Misclassification
- The Report states that the DOL should continue to prioritize addressing the misclassification of employees as independent contractors through a range of strategies, potentially including strategic enforcement, strategic partnerships with other agencies (e.g., the Internal Revenue Service, the Department of Transportation, and state agencies), and guidance documents, research, and outreach/educational initiatives.
Give Labor Organizations Greater Access to and Potential Preference for Federal Grants
- The Task Force would have POTUS instruct the DOL to review all its grants to determine whether there are any legal barriers preventing unions from being lead applicants, e.g., recipients must be 501(c)(3) non-profit organizations, which unions are not. Where there are no legal barriers, the DOL should explicitly name unions as “potential lead applicants” in grant solicitations when doing so would be consistent with the grant’s purpose, activities, and goals. Where unions are not suitable lead applicants, the DOL should ensure that unions are required partners to the lead applicant as appropriate. The Department should also use its existing authority to establish application selection criteria that give preference to applicants that demonstrate commitment to worker organizing, collective bargaining, and union engagement, where consistent with the Department’s legal authority.
Give Unions “a Seat at Many Federal Advisory Tables”
- The Task Force advises POTUS to instruct all federal agencies to include, as appropriate, labor unions in advisory committee membership balance plans and to conduct more outreach to labor unions about opportunities to submit nominations to serve on advisory committees.
Develop Research & Collect Data
- POTUS should, the Task Force says, instruct the DOL to collect data on the status of employment relationships, union membership and worker organizing, strike activity, relative performance of businesses with unionized workforces, and other related subjects, as well as instruct the DOL and Office of Management and Budget to essentially centralize data about employer violations of law. The DOL should make such data on “problematic employers” accessible to the public in order to increase oversight, compliance and enforcement.
Implications for Employers
The Task Force Report makes clear that the Biden administration views the federal government and its agencies as tools to increase union membership, not as neutral bodies to serve all constituents. The Report attributes the decline in union membership since the1950s primarily to employer resistance and outdated labor law, not in any part to the passage of other worker protections like the Occupational Safety and Health Act (OSHA) and Title VII of the Civil Rights Act of 1964, employers’ voluntary grievance programs, or dissatisfaction with unions’ representational performance. The Report appears to share some of the same goals as the Protecting the Right to Organize (PRO) Act, which passed the House of Representatives on March 9, 2021, but has not moved since. With the PRO Act having little to no chance of enactment, the recommendations in this Report could be seen as trying to promote some of the same goals through executive power. Private employers may expect the following:
- The Report encourages the NLRB and other federal agencies to affirmatively reach out to workers about their right to organize, including on social media.
- Increased scrutiny of independent contractor relationships. Indeed, the NLRB and DOL recently signed an interagency Memorandum of Understanding to coordinate investigation and prosecution of worker misclassification.
- Heightened enforcement of the persuader rule and EO 13494, which the Report states makes “unallowable” costs relating to any activities undertaken to persuade employees to either exercise or not exercise their right to organize and bargain collectively.
- Difficulty obtaining federal funding for those employers that exercise their right under the NLRA to speak out against unionization or decline to execute a project labor agreement.
- Pressure to receive training from FMCS in first contract bargaining and/or to utilize FMCS to broker a first contract.
The recommendations in the Task Force report are not likely to be implemented overnight. Certain of the recommendations require regulatory changes subject to statutory notice and comment procedure and might not pass constitutional muster. Moreover, it is unclear whether the federal government’s commitment to being a “model” unionized employer will have any resonance in the private sector. Littler's WPI will continue to track legislative and regulatory changes that may arise as a result of the Task Force's Report, and will provide updates and analysis where appropriate.