The nation’s union movement is suffering from collective whiplash. As the Rust Belt states fell late last Tuesday night, so too did labor’s hopes for a Democratic president who had promised to lift up working people. Instead it was forced to confront the reality of an explosive faux-populist taking power in tandem with a pro-business GOP Congress that has been waiting for its chance to dismantle a beleaguered, but recently rising, labor movement. The promising signs of a rejuvenation for workers’ interests and rights in recent years have all come under a dark cloud of uncertainty and dread.
For starters, with Trump promising to be a regulatory “reformer,” Republicans and their business lobbyist colleagues hope to roll back every single one of President Obama’s labor initiatives that were, slowly but surely, tilting the regulatory system more in favor of worker power. “This is going to be a president who will be the biggest regulatory reformer since Ronald Reagan,” Trump economic advisor Stephen Moore, told The New York Times. “There are just so many regulations that could be eased.”
At the top of the list is the new overtime rule that is set to double the salary threshold (with future increases indexed to inflation) and give millions more workers access to overtime pay in December. The full strength of the rule as it stands now is unlikely to remain intact. Other rulemakings like the fiduciary rule that—despite Wall Street’s intense objections—now requires retirement advisors to act in their clients’ best interest, and the extension of labor law protections to long-exploited home care workers, are in peril as well.
Obama’s executive orders that hike up wages and mandate paid sick leave for federal contract workers and require that their employers disclose past labor law violations can disappear with the stroke of Trump’s presidential pen. Obama’s National Labor Relations Board has produced a series of groundbreaking decisions like the new joint-employer standard that would drastically increase corporate responsibilities for their contractors and franchisees, as well as rulings that opposed mandatory class-action waivers for workers and finally granted graduate students the right to unionize. The NLRB’s rules change that sped up union elections is also on the chopping block. Trump’s appointees could erode or revoke these game-changing decisions and return to a pro-business regime that diminishes worker and union power.
The Fight for 15 campaign, backed by the Service Employees International Union, has called for a $15 minimum wage and a union. And while any sort of federal minimum wage increase is likely out of the question, the campaign’s long-term strategy to compel fast-food chains like McDonald’s to recognize unions is rooted in a joint-employer case that is currently under review by the NLRB. The outcome of that case could be thrown into flux based on what a Trump NLRB does. In fact, as Steven Greenhouse reports, alt-labor organizing tactics like the Fight for 15, and worker centers like the Coalition for Immokalee Workers and the Restaurant Opportunities Center, which have had tremendous success using innovative methods like one-day walkouts not available to unions, could be targeted by the NLRB so that their freedom of action is reduced to that of unions.
Trump is also set to appoint the ninth Supreme Court justice—an appointee who will determine the ideological makeup of the Court. Based on his list of candidates, he will at the very least restore the Court’s anti-worker conservative majority that existed before Justice Scalia’s death earlier this year. By virtue of its gridlock, the court saved public-sector unions from the Friedrichs deathblow that would have done away with the mandatory fees paid by non-union members to their workplace union for collective bargaining services. Now, that threat looms large once again.
“There are at least 27 cases in the lower courts that would do the same thing Friedrichs would have, and you have to expect that one of those cases will bubble up to the Supreme Court,” Lee Saunders, president of AFSCME, one of the largest public-sector union in the country, told The Guardian. “That will be a major challenge for us.”
The prospects of immigration reform that confers legal rights for the undocumented have been dashed. The hazardous working conditions for many of the nation’s undocumented workers, and uncertainty about their futures will likely persist. Meanwhile, Trump could undo the Labor Department’s agreement with the Department of Homeland Security that protects undocumented workers who are trying to organize from deportation.
The current U.S. Labor Secretary Tom Perez, who helped push through most of Obama’s second-term agenda, has been heralded as the most pro-worker cabinet head since Frances Perkins helped enact the modern labor law framework under Franklin Roosevelt. Labor advocates were hoping a Clinton presidency would bring a figure of similar caliber to that post. Instead, they are staring at the real possibility of Wisconsin Governor Scott Walker—whose attacks on his state’s public-sector workers made him a poster child of the right’s anti-union agenda—as Trump’s labor secretary. Walker has reportedly said he’s not interested in the position, but that could change. Other names floated for the position include Victoria Lipnic, who served under George W. Bush Labor Secretary Elaine Chao, and Andrew Pudzner, the CEO of a major fast-food restaurant group. Any appointment is likely to curtail the aggressive employer watchdog apparatus spearheaded by Wage & Hour Administrator Dave Weil, who has been lauded by labor advocates for giving some teeth to labor law enforcement.
If Walker becomes Trump’s top labor advisor, his governorship and his failed presidential run provide an ominous window into what kind of things he’ll be whispering in the president’s ear. If Walker becomes Trump’s top labor advisor, his governorship and his failed presidential run provide an ominous window into what kind of things he’ll be whispering in the president’s ear. As governor, he decimated public-sector unions’ collective bargaining rights, signed right-to-work policy into law, and has gone after prevailing wage laws for state-funded construction projects. During his short-lived presidential campaign last year, he ran on a draconian platform that called for throwing out the National Labor Relations Board, repealing the federal prevailing wage law, banning unions in the federal government, and making the nation right-to-work. Trump himself has explicitly voiced support for a national right-to-work law. Many congressional Republicans share Walker’s vision.
Senate Democrats could manage to thwart the most egregious rollbacks of worker rights—unless the Republicans decide to repeal the filibuster. The picture at the state level may be even bleaker. In the wake of Trump’s presidential win, the GOP now controls more statehouses than ever before. Republican Eric Greitens won the Missouri gubernatorial election, succeeding Democrat Jay Nixon, who had blocked the legislature’s bills that would have made the state go right-to-work. In Kentucky, Republicans won control of both houses of the legislature, also portending a shift to right-to-work. And in New Hampshire, incoming Republican Governor Chris Sununu and a GOP wave in the state legislature could usher in right-to-work legislation there as well. That would increase the tally of right-to-work states to 29. GOP gains across the states will also ensure the proliferation of other anti-worker initiatives, including prevailing wage repeals and preemption of local minimum wage hikes.
These attacks on workers and unions will further diminish the power of organized labor, and its ability to advocate for collective gains at the ballot box and through lobbying. These attacks on workers and unions will further diminish the power of organized labor, and its ability to advocate for collective gains at the ballot box and through lobbying. And while unions have traditionally served as the primary funding source for Democratic candidates running against business-backed Republicans, the GOP agenda takes direct aim at unions’ political programs.
In the blue states and cities (at least those not constrained by preemption) that remain, progressive pro-worker legislation—mandating higher minimum wages, paid sick leave, and fair scheduling practices—will continue to advance, creating an ever-growing gap between Republican and Democratic jurisdictions. But with the loss of the governor’s office in Vermont, and with Republicans likely to retain control of the state senate in both New York and Washington, despite nominal Democratic majorities, there will be just five states in which Democrats control the legislature and the governor’s office (three tiny: Delaware, Rhode Island, and Hawaii: one small, Oregon, and one mega: California). With limited power, the ballot measure—a vehicle for successful minimum wage hikes in four states last week—could become labor’s most effective tool, at least in states where they’re permitted.
The recent trajectory of the labor movement showed promising signs. And while sweeping labor law reform and federal wage hikes were unlikely even if Clinton won the White House and the Democrats captured the Senate and created a friendly Supreme Court, at least the movement’s momentum would have been maintained. The best-case scenario is that Trump’s win and the entrenchment of GOP power will lead to just some of these setbacks, and that such setbacks as come may be reversed when Democrats retake power. The worst-case scenario is injuries so grave that the movement will cease to be a significant force in the American economic and political landscape.
Justin Miller is a writing fellow for The American Prospect