Manuel Balce Ceneta/AP Photo
President Joe Biden signs H.J.Res.100, a bill that aims to avert a freight rail strike, in the Roosevelt Room at the White House, December 2, 2022.
The battle that over 115,000 railroad workers have waged to win paid sick days from their employers may not be over.
This morning, Sen. Bernie Sanders, along with 71 other senators and representatives, sent a letter to President Biden requesting that he require the rail companies to provide seven days of paid sick leave to their employees as a condition of their continuing to receive federal contracts.
As former New York Times labor reporter Steven Greenhouse first noted in an article for the Century Foundation, which the Prospect amplified, President Obama issued an executive order on Labor Day 2015 that required federal contractors to provide their employees with seven paid sick days per year. All the rail companies have been federal contractors going back to the 19th century, moving freight and supplies on behalf of multiple federal agencies. Rail companies stated in court last year that they were federal contractors, in a case about the president’s vaccine mandate.
But Obama’s order was limited to workers whose wages are governed under the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act. Rail workers fall under a different law, the Railway Labor Act. So they didn’t qualify for the order’s mandate for sick days. As The Lever reported, the rail industry specifically lobbied against being included in the order in 2016, when the Department of Labor was turning it into a rule.
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The letter from Sanders and his colleagues argues that President Biden can and should extend the executive order to give rail workers sick days. “It is literally beyond belief that rail workers are not guaranteed this basic and fundamental human right,” the letter states. “You can and you must expand this executive order.”
The lead House members on the letter are Reps. Jamaal Bowman (D-NY), Rashida Tlaib (D-MI), Alexandria Ocasio-Cortez (D-NY), Cori Bush (D-MO), and Donald Payne Jr. (D-NJ), who chairs the House Transportation Subcommittee on Railroads, Pipelines, and Hazardous Materials. In all, 16 senators and 56 members of the House co-signed the letter.
Paid sick days were the key demand in what nearly became a historic walkout by 12 rail unions last week. Facing the immediate prospect of a strike that would have greatly disrupted the American economy, Biden asked Congress to impose a settlement fashioned by a board he appointed, averting a strike by compelling the workers to accept a contract that included major pay raises for the rail workers but, in the face of adamant corporate opposition, failed to include sick days. Under the authority granted them by the Railway Labor Act nearly a century ago, Congress voted to impose that settlement. A separate measure to add paid sick days to the deal cleared the House in a party-line vote but failed to win enough Republican support to clear the 60-vote hurdle in the Senate.
But Sanders and his colleagues are among the first elected officials to explicitly say that Biden should bestow sick days on rail workers by executive order. The Boston Globe editorial board and incoming progressive member of Congress Summer Lee have suggested the executive order tactic. Bowman urged the use of executive authority last Friday.
The industry has often stated that the Railroad Unemployment Insurance Act is the “exclusive provision” by which rail workers receive sickness benefits.
Such a move would almost certainly end up in court. The industry has often stated that the Railroad Unemployment Insurance Act of 1938 is the “exclusive provision” by which rail workers receive sickness benefits. (RUIA provides long-term sick benefits, not the kind of sick days that would allow a worker to see a doctor on short notice.) Rail companies have won in court with this argument, avoiding having to provide sick days when state laws mandate them.
But federal preemption of state law does not necessarily predict that a presidential executive order based on procurement policy would be overturned.
In addition, the letter offers other options beyond a sick day executive order. The Occupational Safety and Health Act gives the secretary of labor the ability to impose safety standards on any business involved in interstate commerce. Similarly, the secretary of transportation can, using the Federal Railroad Safety Act, pass a rule requiring sick days as a means to reduce accidents, injuries, and deaths. “We can think of few things that threaten the safety and health of workers more than being required to come into work sick and exhausted,” the letter notes.
In recent decades, rail companies have cut staffing to the bone, reducing payrolls in order to increase profit margins and payouts to shareholders. Operating trains with so few workers meant that those workers couldn’t count on any guaranteed downtime. At rail giant BNSF, owned by Warren Buffett’s Berkshire Hathaway, workers are required to be on call 75 percent of the time.
This year, toiling under an industry-wide contract that would eventually accord them just one paid sick day annually, workers argued that they needed more for their families’ and their own checkups and other doctor visits. The companies responded by telling them they could use their vacation days to cover the time off they took for health-related reasons. Meanwhile, the same companies are swimming in record profits. As the letter points out, seven paid sick days would cost the industry $321 million annually, which is less than 2 percent of annual profits.
President Biden took a lot of heat from progressive critics—and even a couple of posturing Republican senators—for imposing a contract on the workers to short-circuit a potential strike that would have severed some of the nation’s most important supply chains. In response, Biden vowed to fight for sick days for every U.S. worker, much like the ultimately failed paid leave proposal in his Build Back Better Act.
Over the past few years, Sanders’s prompting has played a significant role in convincing Biden to support a range of popular progressive economic policies. The letter takes this a step further, asking the president to actually act. “Over 115,000 rail workers in this country are looking to you,” the letter concludes, “to guarantee them the dignity at work they deserve and to ensure that our rail system is safe for its workers and for millions of Americans who cross rail tracks every day.”
