Evan Vucci/AP Photo
President Joe Biden meets with UAW members during a campaign stop at a phone bank in the UAW Region 1 Union Hall, February 1, 2024, in Warren, Michigan.
In 2014, after several years of work led by the Labor Department, the Obama administration issued a major rule to help government to keep track of chronic violators of a range of laws designed to protect workers. The laws included the Davis-Bacon Act, which requires certain public-works contractors to pay prevailing wages; the Occupational Safety and Health Act (OSHA); the Fair Labor Standards Act covering wages, hours, and accurate classification of workers; the Wagner Act guaranteeing workers the right to organize or join a union; and several more.
The idea was to make sure that repeat offenders did not keep getting government contracts, and thereby to encourage corporations to obey laws that protect workers. The rule, called Fair Pay and Safe Workplaces, also facilitated the creation of a government-wide database, so that different agencies with different recordkeeping systems could access the same information on contractors.
But today, that long-overdue government-wide enforcement system is a shambles. When Trump took office in 2017, he repealed the rule. Even before he acted, contractors found a federal district court judge in Texas to issue an injunction against it.
In that case, Associated Builders and Contractors of Southeast Texas v. Rung, decided in October 2016, the judge enjoined enforcement of the rule on several grounds, including supposed violation of due process, administrative actions going beyond the intent of Congress, and even infringement on contractors’ free speech.
By the time the Obama administration considered whether to appeal, Trump had been elected and no appeal was possible. Then for good measure, the Republican Congress that came in with Trump acted under the Congressional Review Act to prohibit either Congress or a Democratic president from reviving the rule.
So even though every one of the underlying laws has long been found to be constitutional, a serious effort to enforce them has been stymied. The Biden administration has been doing its best to salvage some aspects of the enforcement plan, consistent with what the courts will allow.
For instance, for several decades, every federal agency that contracts with the private sector has had one or more career civil servants specializing in labor issues. Back when unions were more powerful, these labor contracting specialists focused on such issues as helping expedite contract work in the aftermath of strike settlements. Now, the job of these labor advisers has been repurposed to expedite sharing of information and enforcement actions against contractors who violate any of several labor laws.
And as the federal government attempts to underwrite rapid rebuilding of the Francis Scott Key Bridge (dependent on whether the Republican House allows it), a project that would require payment of good wages under the Davis-Bacon Act, the administration also plans to use this effort as a model of Davis-Bacon enforcement.
The tug-of-war, capital versus labor, never ends. Government is a major player. And it’s all too clear which political party is on which side.
As I’ve reported, the contractor on the bridge repair that killed six immigrant workers was non-union, and my sources say those workers were very likely paid as independent contractors. That would be a case of illegal misclassification. Among other consequences, it would leave these workers and their families outside the workers’ comp system.
Biden also successfully sponsored well over a trillion dollars of new infrastructure spending via the Inflation Reduction Act, the bipartisan infrastructure law, and the CHIPS Act. Creation of good union jobs is a central objective.
Key to this effort is the Biden executive order on project labor agreements, which promote labor-management cooperation on large federally financed construction projects, including enforcement of Davis-Bacon. PLAs help carry out Biden’s pledge to create good union jobs.
But last week, the Florida branch of the contractors’ lobby filed suit to have the PLA order declared unconstitutional, on the same grounds that the Texas judge used to overturn Obama’s Fair Pay and Safe Workplaces rule. So it goes.
The tug-of-war, capital versus labor, never ends. Government is a major player. And it’s all too clear which political party is on which side.
The details of this particular story are down in the weeds of the administrative state. I only learned about Obama’s earlier rule and its evisceration in the course of looking into whether the workers killed in the Key Bridge disaster had been illegally underpaid.
But even though the details are complex and obscure, the headline could not be clearer: Democrats try to use the government to help working people. Republican legislators, judges, and presidents work to help corporate America evade or overturn those laws, at the expense of workers.
At a time when Biden is not getting enough credit for an improving economy, that story needs to be widely told and better understood. I can’t think of a better theme for the Biden campaign.
