Labor rights by executive decree

This summer, 1 million working people in Massachusetts won paid sick leave. This remarkable advance was the result of a 2014 referendum, which passed with the support of 60 percent of voters. It granted workers one hour of paid sick leave for every 30 hours worked. With that vote, the Bay State became the third in the nation — after California and Connecticut — to extend such protections to its citizens.

In September, President Barack Obama went to Boston to announce a new regulation for federal government contractors, which will be required to offer their workers paid sick time as well. The federal standard will grant seven days of paid medical leave per year. The White House estimated that the executive order will benefit 300,000 people when it goes into effect in 2017.

“Right now, about 40 percent of private-sector workers — 44 million people in America — don’t have access to paid sick leave,” said Obama, speaking before the Greater Boston Labor Council. “Unfortunately, only Congress has the power to give this security to all Americans, but where I can act, I will.”

When it comes to labor rights, the combination of state-level and White House action has become a trend. In the absence of congressional action, states and municipalities are innovating on their own, drawing from and bolstering broad public support for labor protections. At the federal level, the Obama administration is stepping in with executive authority to make gains national.

Although this system may not be an ideal way to modernize labor law in America, it is getting results.

Early in his first term, Obama enjoyed a very narrow window in which he was able to pass significant legislation with Democratic majorities in both houses of Congress. After the sweeping Republican victories in the 2010 midterms, much of the responsibility for significant new progressive legislation has been passed to the state and local levels.

Paid sick leave became law in a few cities before 2010 — notably San Francisco and Washington. It really picked up steam in 2011, when newly elected Connecticut Gov. Daniel Malloy signed the first statewide paid sick leave bill. In the wake of that victory, similar laws were enacted in Seattle; New York City; Philadelphia; Pittsburgh; Oakland, California; Maryland’s Montgomery County; and Jersey City, Newark and a host of smaller municipalities in New Jersey. By the time the Massachusetts referendum passed in 2014, it was a full-blown progressive cause. 

The drive to raise the minimum wage has followed a similar trajectory. The federal standard hasn’t budged from $7.25 per hour since 2008. In his 2013 State of the Union address Obama recommended increasing it, but only to $9 an hour. States and municipalities eventually took the issue into their own hands.

A series of one-day strikes by fast-food and Walmart workers raised the profile of the wage issue substantially. In 2013 the working-class Seattle suburb of SeaTac voted for a $15 minimum hourly wage. The next year, Seattle passed a similar increase. Since that time, San Francisco and Los Angeles have passed hikes to $15 an hour, and other blue cities and red states have increased their wages as well, if not to quite that level. In New York, Gov. Andrew Cuomo has embraced a $15 minimum wage.

Actions of this nature have proved immensely popular among ordinary people. Most Americans don’t care where labor protections come from — via state legislatures, the federal government or court mandate. They just want higher wages and a protected right to family and sick leave, as poll after poll after poll shows.

State and local victories have been impressive. Yet there are still tens of millions of workers who live outside the areas where these protections have been enacted. Congress must address their needs, but it hasn’t. In the absence of legislative action, Obama, goaded by progressive pressure from below, has increasingly turned to executive orders.

In recent months the White House has promulgated a new and wide-ranging regulation strengthening overtime requirements, which will extend the protections to millions of employees. It has raised the minimum wage for workers employed by federal contractors to $10.10 an hour and required that their employers reveal previous labor law violations (which will be taken into account when contracts are awarded). It barred discrimination against transgender and gay workers among contractors — something Congress has failed to do, even though the Employee Non-Discrimination Act has been introduced in every session since 1994.

Such White House moves have been positive. But there are limits to executive action. The start date for the federal contractor paid sick leave ordinance is in 2017, after the next administration takes over. If a Republican wins the presidency — and perhaps even a Democrat — such ordinances can be easily reversed or sidelined. As Bruce Vail of In These Times has reported, similar action to curtail labor abuse among the federal government contractors was taken up by Bill Clinton’s administration, delayed until its final years and then scrapped by George W. Bush’s administration.

Executive orders will never be a substitute for congressional action. But with the Republican Party controlling at least one chamber of Congress for the foreseeable future, no forward movement can be expected on labor issues at the federal level. Until Americans political institutions become more responsive, state and local action will be critical, and executive action will remain an important path to making innovations national.