By Michele C. Spillman and Byrona J. Maule
In April 2021, President Biden established the Task Force on Worker Organizing and Empowerment (“Task Force”) to identify “policies, practices, and programs that could be used” to support his goal to be “the most pro-Union President leading the most pro-union administration in American history.”
The Task Force recently issued a blueprint for boosting union organizing within the American workforce. While many of the Task Force’s recommendations are aimed at federal employees, others carry implications for federal contractors and private sector employers with non-union workforces.
The Task Force’s report contains a laundry list of nearly 70 recommendations that center around three goals:
- positioning the federal government as a model actor;
- using 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
- using longstanding authority to leverage the federal government’s purchasing and spending power to support workers who are organizing and pro-worker employers.
Below are some notable recommendations that affect all employers:
Persuader Activity
The Task Force seeks to improve transparency of anti-union campaigns by employers. According to the report, in 75 to 80 percent of organizing campaigns, employers engage in “persuader” activity by hiring third-party consultants to develop communications and campaign strategies to defeat the organizing drives. The Task Force states, “Workers, unions, corporate shareholders and others that own interests in companies, and the public should know about persuader activity because it shows the extent and costs of activities employers undertake to defeat workers’ organizing efforts.”
While employers and their persuaders are currently required to file disclosure reports with the Department of Labor’s Office of Labor-Management Standards (OLMS), the Task Force recommends several additional measures with respect to persuader activity. First, the Task Force recommends that DOL take measures to strengthen its rules and policies “to ensure maximum compliance and reporting of persuader activity.” The Task Force also recommends that the OLMS revise its rules to require disclosure as to whether the entity filing a disclosure report is a federal contractor, whether the persuader activity relates to employees working on or in connection with the federal contract, and with which agency the employer contracts. In addition, the Task Force recommends that DOL and the Office of Federal Procurement Policy develop a mechanism for ensuring that contracting agencies are aware of persuader reports filed by federal contractors. Finally, the Task Force recommends that the Department of Defense promulgate guidance to contracting officials about regulations that prohibit federal contract dollars from being used for persuader activity.
Promoting Unionization
The Task Force aims to increase visibility, support, awareness, and promotion of collective bargaining and increase awareness of workers’ rights. According to the report, research shows that more than half of private sector workers want to unionize, and the Task Force believes that “visible support for the rights of workers to organize sends a strong message to workers that the Biden-Harris administration supports and defends their right to a free and fair choice to organize or join a union.”
As part of this goal, the Task Force recommends that:
- DOL launch and lead a “Know Your Rights” initiative to increase awareness of collective bargaining rights, especially to young workers, women and workers of color;
- federal agencies prioritize expanded outreach particularly to young workers and underserved communities and post updated and visible materials on its websites and social media about workers’ organizing and bargaining rights;
- the Department of Defense emphasize and verify that federal contractors comply with regulations regarding notifying employees of their rights to organize;
- DOL expand and improve the information available on Worker.gov, including information regarding workers’ rights to organize and bargain collectively;
- the Small Business Administration assemble a resource guide for small businesses to inform them of their obligation to respond legally and fairly to worker organizing;
- the Biden-Harris administration talk about the importance of workers’ rights to organize and bargain and “the benefits to workers, employers, and communities of collective bargaining” including through public service announcements and videos by the President, Vice President, Secretary of Labor and other high-ranking officials; and
- DOL create a resource center on the benefits of unionization and labor-management partnerships.
Enforcement of Existing Laws
The Task Force also aims to ensure effective enforcement of existing laws by increasing coordination between DOL and other federal agencies. First, it instructs DOL to strengthen its “coordinated efforts” with the National Labor Relations Board and other agencies to ensure that workers are protected from retaliation when engaged in concerted activity or a labor dispute. Second, it instructs the Department of Homeland Security to develop and implement immigration enforcement policies that facilitate the work of DOL to protect organizing and collective bargaining rights and enforce wage, workplace safety, and other standards. Third, the Task Force instructs DOL to “continue to prioritize action to prevent and remedy the misclassification of workers as independent contractors through (1) rigorous enforcement, (2) partnerships with other federal and state agencies, including the IRS and Department of Transportation, (3) guidance, rules and/or education for employers and workers, and (4) robust outreach to workers, employers, unions, and worker advocates.
The Task Force’s recommendations will take time to implement, but the report gives employers a clear picture of the Biden administration’s strong pro-union stance and what we can expect over the next few years. For more information, consult with a Phillips Murrah labor and employment attorney.
For more information on this alert and its impact on your business, please contact Michele C. Spillman at 469.485.7342 or by email, or Byrona J. Maule at 405.552.2453 or by email.
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