Get a shovel: Biden to roll back Trump ‘midnight rules’
President-elect Joe Biden, when he was still a candidate, meets with union leaders outside at the AFL-CIO headquarters in Harrisburg, Pa., Sept. 7, 2020. | Carolyn Kaster / AP

WASHINGTON (PAI)—Get a shovel and a trashcan, too. Democratic President Joe Biden promises to immediately undo the most recent—and some of the most egregious—damage perpetrated by his right-wing GOP predecessor, Donald Trump.

What Biden doesn’t undo, the new Congress could take a crack at, if both House and Senate Democrats vote in unison. But that’s no sure thing: The House’s Democratic majority is reduced, thus enhancing the clout of so-called “moderates,” who are more likely to cotton to corporate capitalist lobbies.

And Sen. Joe Manchin, D-W. Va., has already shown signs of defection from the Senate’s 50-50 tie, on another issue, the $2,000 economic stimulus payments to all adults. He wants targeted aid to the needy.

Biden Communications Director Jennifer Psaki announced in early January her boss’s first move when he takes over the Oval Office on Jan. 20 will be to roll back so-called “midnight rules” issued by the right-wing ideologues who served Trump, his GOP predecessor. Biden will do that by halting the consideration, or implementation of those rules.

Those are Trumpite pro-corporate federal regulations issued, basically since the November election.

“This freeze will apply not only to regulations but also guidance documents that can have enormous consequences on the lives of the American people,” Psaki told a virtual press conference via Zoom.

The rules rollback Biden plans don’t include those rules workers sought which Trump ignored. Prime among them: Rules mandating firms protect workers and customers against exposure to the coronavirus. National Nurses United and the AFL-CIO led that charge. Biden intends to implement that, unions say.

The midnight rules show the outsize influence Trump’s corporate compadres exercised during his four-year regime, when corrupt capitalism bought what it wanted, through lobbying and campaign contributions, and by working with Trump-installed right-wingers atop agencies.

The ideologues’ edicts cover everything from opening the pristine Arctic National Wildlife Refuge in Alaska to oil drilling to letting firms misclassify more workers as “independent contractors,” with no rights on the job, including no right to unionize.

Ironically, when the Interior Department opened ANWR in early January, the oil firms didn’t bid on drilling rights. Banks had refused to finance the bids.

But ANWR’s “rescue” from Trump is an exception. The other Trump midnight rules, including the misclassification edict, are still alive. That rule, in particular, won’t be published until March 8, Trump’s DOL said. The delay gives Biden the chance to yank it back.

“Streamlining and clarifying the test to identify independent contractors will reduce worker misclassification, reduce litigation, increase efficiency, and increase job satisfaction and flexibility,” claimed Trump Labor Department Wage and Hour Division chief Cheryl Stanton. It continues our work to simplify the compliance landscape for businesses,” she said—on Jan. 6, the day Trumpites invaded the U.S. Capitol in a coup try against Biden.

The Teamsters promptly opposed the independent contractor rule. Bosses, notably West Coast trucking firms at the port of Los Angeles-Long Beach, misclassify all their drivers as independent contractors.

Misclassification forces the truckers to pay for their own gas, repairs, insurance, Social Security and Medicare payroll taxes, and the employers’ share of those levies, too. As a result, the truckers make poverty wages, and some weeks nothing at all, running at a loss.

And because they’re independent contractors, they are legally barred from unionizing. California’s Labor Department successfully sued the trucking firms in federal court to reclassify the truckers as “employees” with worker rights.

“#Teamsters oppose a new @USDOL rule that would make it easier for companies to classify workers as independent contractors & therefore not be covered by min. wage & overtime laws. We are asking the incoming Biden admin. to not allow the rule to take effect,” the union tweeted the day of the Capitol takeover.

So did Rep. Bobby Scott, D-Va., chair of the House Education and Labor Committee.

“When workers are misclassified, they are subject to potential wage theft, law-abiding businesses are placed at a competitive disadvantage, and state and federal governments are deprived of much-needed tax revenue,” he said.

DOL didn’t say how much workers would lose by being misclassified as independent contractors, though it conceded “this rule could leave workers with fewer critical job-based benefits, including health insurance’during a pandemic, Scott noted” and retirement.”

The Economic Policy Institute calculated the costs, though: $3 billion yearly in lost wages for all independent contractors—truckers, warehouse workers, adjunct professors, some fast-food workers, and others—nationwide. Cash-strapped states would lose payroll and workers comp revenue and there would be “a $750 million hit to social insurance programs” including jobless benefits, EPI calculated.

The present and potential “independent contractors” aren’t the only workers who would take an economic hit under Trump regime midnight rules. So would workers, most of them workers of color, who try to survive on tips.

They’d lose at least $700 million annually, EPI Senior Economist Heidi Shierholz reported after DOL unveiled its final “midnight” tipped workers rule on Dec. 11. And that DOL estimate was in the preliminary version, in 2019, before the coronavirus pandemic hit.

“Prior to this new regulation, tipped workers had been protected by the very clear ‘80/20’ rule, which says they can spend a maximum of 20% of their time on nontipped duties while still being paid the subminimum wage for tipped workers,” which is as low as the federal tipped workers’ minimum of $2.13 an hour, Shierholz noted.

“The new regulation does away with this protection, replacing it with vague, much less protective language. In particular, it allows tipped workers to be paid the subminimum tipped wage while performing an unlimited amount of nontipped duties, as long as those nontipped duties are performed ‘contemporaneously with tipped duties or for a reasonable time immediately before or after performing the tipped duties,’” she said after EPI formally opposed it.

“’Reasonable time’ is not defined, and its ambiguity will make it difficult to enforce, providing employers an immense loophole and leaving workers behind,” she explained. But since the tipped workers rule is yet another midnight rule, Biden can yank it back, she added.

Shierholz called the tipped workers rule “an emblematic parting blow from this administration to the working people of this country.” There are others Biden can yank back, according to several sources, including EPI and ProPublica. Prominent ones include:

Forcing rail workers to toil longer. Over the objections of workers and their unions, including the Teamsters’ Rail Division and Smart-TD, Trump’s Federal Railroad Administration waived a prior ban on forcing workers to toil more than 14 consecutive hours.

The rail lobby said the waiver “would be helpful for workers to be able to respond to emergencies outside that window,” ProPublica reported. The rail unions retort that past waivers let bosses pressure workers to toil even longer hours—and that fatigue in rail jobs, especially among engineers and trainmen, is unsafe.

Using religion to discriminate on the job. The Labor Department and other agencies instituted this one since Election Day, too, as Press Associates Union News Service and People’s World reported before.

Using a Supreme Court ruling involving religious schools in Philadelphia as a “hook,” DOL and the other Trump-run agencies said bosses at religiously affiliated institutions—not just schools, but hospitals, nursing homes, and even daycare centers–could discriminate in hiring, firing and promoting workers of another faith if those workers did not follow tenets of the sponsoring religion.

Making it tougher for shareholders to challenge corporate conduct. Trump’s DOL Employee Benefits and Security Administration “would constrain the ability of private retirement fund managers”—notably the two most-active challengers, the California Public Employees Retirement System (Calpers), and New York’s public employee pension plan—”to vote on shareholder resolutions that influence the behavior of public companies.” Calpers and other foes of Trump’s scheme “say it will reduce corporate accountability and oversight,” ProPublica reported.

Preventing immigration administrative law judges from stopping immediate deportations, using discretion, until a migrant could get a full-scale hearing and present evidence of the right to stay in the U.S. The ALJs are already being overridden by Trump’s Justice Department, whom they work for, and its Executive Office of Immigration Review, which came up with this midnight rule.

EOIR issued another rule cutting the amount of time asylum-seekers could have to prepare their applications, limited the evidence they could offer, and banned asylum seekers from calling outside independent witnesses. It’s vulnerable, too.

Though this wasn’t a Trump rule, it has the same effect: Just to make sure the 400 ALJs have even less power to stop deportations, and to send a signal they’d better not try, Trump’s Justice Department unilaterally stripped them of their union, a Professional and Technical Engineers local. The Trump-stacked board that bounced the local called the ALJs “supervisors,” who can’t unionize. It said ALJs have too much discretion and allegedly use migrants’ cases to make policy.

On Nov. 17, Trump’s Transportation Department OK’d a Washington state trucking lobby demand to halt a state law giving drivers more meal and rest breaks than federal rules require, ProPublica said.

Unfortunately, Biden can’t roll back by fiat everything Trump did. Trump issued most of his anti-worker rules long before the election. That includes virtually all rules from the three GOP white right-wing males who are the National Labor Relations Board majority. Getting rid of those prior Trump anti-worker rules, including those from the NLRB, would take court rulings or legislation to either repeal rules or ban the NLRB from spending money to enforce them.

Courts have consistently overturned Trump’s rules, usually because Trump didn’t follow federal laws allowing enough public comment and mandating agencies consider it. Both the Cares Act, passed last March, and both versions of the Heroes Act had some spending bans.

Lawmakers could also tackle the midnight rules using the Gingrich-GOP-passed 1995 Congressional Review Act. That law says that within 60 days of a final rule being promulgated, Congress can pass a joint resolution not only overturning it but barring any future rules on that issue at all.

The GOP-run Congress in Trump’s first months used the CRA to overturn 12 Obama-era rules, including pro-worker rules. Its first use was against workers decades ago. The GOP dumped the Occupational Safety and Health Administration’s crackdown on ergonomic (repetitive-motion) injuries. The CRA ban means OSHA can’t even touch ergonomics again.

But Biden can, and Psaki said he will roll back Trump anti-worker executive orders, which are easy for one president to impose and another to repeal. There were so many anti-worker executive orders, especially those imposed on federal workers, that unions and workers will be happy with Biden’s decision to dump them. They include:

Dumping three Trump executive orders targeting federal workers and their unions in particular. A fourth Trump order, converting thousands of career positions into at-will “policy” jobs where bosses can arbitrarily fire workers with no notice, takes effect Jan. 19, unless Biden stops it the next day.

The three anti-federal union executive orders also banned federal workers from communicating with Congress and sharply cut down on due process rights workers had against arbitrary discipline. In those same orders, Trump banned collective bargaining on certain topics. By law, federal worker unions can’t bargain on pay but can bargain on other working conditions.

In one of the three, Trump threw unions out of their small offices in federal buildings, used for meetings on grievances and other business. His order also confiscated phones, laptops, and even photocopying machines from those offices, and ordered union reps to handle grievances for workers on their own time and on their own dime.

Federal worker unions, including the Government Employees (AFGE) and the Treasury Employees, expect Biden to dump those Trump edicts.

“These outrageous attacks can be reversed by the Biden administration,” AFGE President Everett Kelley said in mid-November. “Biden will have the power to rescind Trump’s controversial executive orders, which Biden has prioritized on Day 1 of his presidency to restore the rights of government workers to unionize.”

Workers construct a stage in preparation for President-elect Joe Biden, at an election night rally Nov. 3, 2020, in Wilmington, Del. After delivering for Biden on Election Day, workers now expect him to deliver for them when he’s in office. | Andrew Harnik / AP

Biden’s “Building Back Better” platform also promises he will include “union and bargaining rights for public service workers, and a broad definition of ‘employee’ and tough enforcement to end the misclassification of workers as independent contractors,” in the economic stimulus plan he will send to Congress.

Revoking another Trump executive order, from October, saying that employees of federal services contractors—such as fast-food workers at chain locations in federal buildings—don’t have the right of first refusal for their current jobs if the contractor changes (from say, McDonald’s to Burger King at the same stand).

Invalidating a 2017 Trump edict making it easier for anti-union construction companies to get federal cash to run apprenticeship programs. North America’s Building Trades Unions lobbied long and hard against that scheme.

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Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but a holy terror when going after big corporations and their billionaire owners. El galardonado periodista Mark Gruenberg es el director de la oficina de People's World en Washington, D.C. También es editor del servicio de noticias sindicales Press Associates Inc. (PAI).