Presidential administrations have many options at their disposal to influence the relationship between workers and their employers. As administrations come and go, they often end up turning the same dials back and forth, depending on the party in power. These dials exist where the law is subject to interpretation, allowing the person tasked with enforcing the law the opportunity to do so in a way consistent with their own political perspective.
The National Labor Relations Act (NLRA) is the main law governing the relationship between private employers and their collective employees. The National Labor Relations Board (NLRB) is the body that enforces the NLRA. When an employer violates the NLRA, it is the responsibility of the NLRB to prosecute and punish the employer. The president, with Senate approval, decides who is in charge of the NLRB, and those people decide how to turn the dials. Obama’s appointees turned the dials one way, Trump’s appointees turned them another, and Biden’s turned them back.
Independent Contractors
One example of this back-and-forth phenomenon is the different ways in which different boards have tested whether a worker is an independent contractor or an employee. The NLRA protects employees from employer interference in their collective actions, but it does not protect independent contractors. This means an employer can threaten and then terminate an independent contractor because of their organizing activity and not suffer any consequences. Meanwhile, that same employer would suffer consequences for taking the same actions against an employee. The NLRA, though, does not tell us who is an employee and who is an independent contractor. This leaves room for the NLRB to turn a dial. A NLRB could make it easier for workers to organize by counting more workers as employees and fewer as independent contractors or make it harder for workers to organize by counting more workers as independent contractors and fewer as employees.
The Obama NLRB, meaning the NLRB composed mostly of people Obama appointed, chose an independent contractor test that had been in use since a Supreme Court decision in 1968. This test asks a bunch of different questions like: Who supplies the tools? How much leeway does the worker have to determine the method used to accomplish the job? Is this work part of the work the employer normally engages in, or is this more of a special situation? The judge would then weigh this all together and come to a decision. This test turned the dial more toward employees and less toward independent contractors.
The Trump NLRB shifted the test to ask the same questions, but to do so “through the prism of entrepreneurial opportunity.” Their test focused on the ability of the worker to make more money if they get more work done. This turn of the dial made it more likely for a worker to be classified as an independent contractor, and thus lose protection, especially if paid by commission.
The Biden NLRB went back to the test that the Obama board used while limiting when the board could consider entrepreneurial opportunity and in what contexts. This test turned the dial back in the easier to organize direction and now more workers are likely to gain the protections of the NLRA.
Abusive conduct
Another gray area in the law arises when the NLRB is determining whether to protect an employee after they yelled at the boss. These cases are about finding the line between employers maintaining a healthy and productive workplace and employees challenging their bosses to enact the change they want. If an administration wanted to make it harder to organize, they could give employers more freedom to fire anybody who raises their voice, while if they wanted to help organizers, they could protect workers who show emotion during stressful times.
The Obama NLRB’s test involved asking questions to figure out if the conversation was either about organizing or a response to employer abuses, which makes it more likely to be protected, and how mean the employee was to the boss. The ruder the employee and the more visible the insults were to customers, the less likely the employee conduct is to be protected. This test turns the dial in the direction of protecting the worker. It also understands that fights between workers and employers can get heated and employees must challenge employers in order to be heard.
The Trump NLRB changed the test to one focused on intent. They asked whether the employer intended to stifle organizing or whether they just responded to insults the way they normally would. This makes it much easier for employers to punish employees whenever discussions get heated, turning the dial in the direction of making it harder to organize. This test ignores the consequences of punishment an employer doles out, forgetting it may stop the employee, or others, from asserting their rights at a later date.
The Biden NLRB reversed the Trump NLRB’s decision and returned the law back to where it was under the Obama board. Now employees have more room to argue with and confront their bosses with less fear of reprisals.
Contractor Trespass
The NLRA also gives off-duty employees the right to enter the workplace and engage in collective action as long as they aren’t overly disruptive to business. A third dial appears if the employer doesn’t own the property but instead leases it from another company. For example, imagine a theater leases out its space to a symphony. The symphony practices and performs in this theater. The musicians work for the symphony, not the company that owns the theater. What happens if the theater wants to kick protesting symphony employees off their land?
The Obama NLRB test allows the employees to protest as long as they don’t significantly interfere with the theater’s use of the property and the theater owner can’t show some really good business reason why they need to be excluded. This test increases employees’ ability to pressure employers into action.
The Trump NLRB thought that test didn’t give enough deference to the rights of the property owner, so they made a new test. Their test assumes the off-duty employers are trespassers and only allows them access if there is no other way for them to communicate with their target audience. This test turns the dial in the other direction, weakening workers’ ability to speak out.
The Biden NLRB reimplemented the Obama board test. More worker protests will pass this test than the Trump board test, giving workers more power to champion their demands.
Concerted Activity
The NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” but it doesn’t protect an employee’s individual complaints. Put another way, the NLRA protects employees who are acting on behalf of other employees, but not ones who are acting only on behalf of themselves. What the NLRA doesn’t do is help a judge decide if the action an employee took is a group action or an individual action, giving administrations another dial to turn. If the NLRB wanted to protect more actions, it could push an inclusive test likely to classify a larger percentage of activities as concerted, while an NLRB wanting to limit protections could do the opposite.
The Obama NLRB used a test that admitted this is a hard question to make strict rules about and asked the judge to look at all the facts and then make their best determination. It reminded judges that sometimes actions can be group actions even though it wasn’t planned in advance because the employee is trying to inspire others to follow. It also reminded judges that sometimes an employee can take a group action even though they took the action in a one-on-one meeting with the boss and not in front of all the other employees. This test gives a broad understanding of concerted activity, turning the dial to protect more employee actions.
The Trump NLRB took a different tact. Their test limited the situations in which a statement made by an employee in front of others employees would be considered a group action. It asks if the statement was made at an official meeting called for the purposes of discussing the issue the employee complained about, limiting the situations in which concerted activity could be found. It also asks if the employee directly complained or if they just asked a question, forgetting that some of the best complaints come in the form of a question. This test restricts the range of statements protected by the NLRA.
The Biden NLRB test again returned the law back to where it was before. Their test asks judges to look at all of the facts and reminds them of the many different ways in which seemingly individual activity is actually group activity.
A presidential administration has many more dials than just those the NLRB can turn. The Biden administration has also passed rules that help workers employed in federal construction contracts, given more workers the benefits of overtime, outlawed non-compete clauses, and more. The Trump administration took many actions to weaken worker power. When the administration changes parties again, we can expect the dials to turn once more.
