Quick: Who’s the secretary of labor? You probably couldn’t have told me before you saw the headline on this article. And that’s a problem this Labor Day, nearly 18 months after Marty Walsh was confirmed as labor secretary to the most pro-labor president since Harry Truman.
I wish I could tell you that Walsh is one of those guys who likes to work quietly, out of the spotlight, because he can get more done that way, but the blunt truth is that Walsh hasn’t gotten all that much done at the Labor Department.
The Labor Department is supposed to issue a proposed regulation raising the wage ceiling under which virtually every employee qualifies for overtime pay. That isn’t out. It’s supposed to issue an add-on to a weak Trump-era regulation protecting investors from self-dealing by brokers who handle their retirement accounts. That isn’t out. It’s supposed to issue a proposed regulation extending to miners worker protections from airborne silica that the Obama administration enacted in a 2016 regulation. That isn’t out. It’s supposed to issue a proposed regulation barring employers from misclassifying employees as independent contractors. That isn’t out. It’s supposed to issue a regulation to update and strengthen protections under the Davis-Bacon Act requiring federal projects to pay prevailing wages (i.e., union scale). That isn’t out, though in this case there is a proposal, and the final rule is expected soon.
The regulatory process is slow and arduous. You issue a notice of proposed rulemaking. Then you issue a proposed regulation. Then you collect a lot of public comment. Then you issue a final regulation. The process can take years. Sometimes it takes decades. But it doesn’t always take decades, and sometimes it doesn’t even take a year. And anyway, how are you going to finish if you never start?
The Labor Department has, by my count, only two really significant regulatory accomplishments under its belt. The more important of these was an emergency temporary standard protecting workers from Covid. President Biden issued an executive order on his first day in office saying the emergency standard would be ready by mid-March 2021. Walsh pushed valiantly for it, but the White House got nervous, and the rule didn’t surface until June 2021. When it did it was limited to health care workers, whom it “encouraged” but didn’t require to be vaccinated. Finally in September 2021 Biden did what he should have done six months earlier and announced a Labor Department “vaccine mandate” requiring large employers to get their workers jabbed or submit them to weekly Covid testing. The Supreme Court overturned that excellent public health policy in January 2022. I don’t blame Walsh for that. It was a reactionary and utterly appalling decision. Still, it would be better if Walsh’s most significant regulatory accomplishment were something that didn’t get thrown out.
The second regulatory accomplishment was the Labor Department’s reinstatement of a rule barring employers from paying the lower “tipped” minimum hourly wage of $2.13 (as opposed to the regular hourly minimum of $7.25) to workers who spend more than 20 percent of their time performing functions (like cleaning up) where they don’t interact with customers, and therefore don’t get tips. President Trump’s Labor Department had gutted the rule, which had been in place since the 1980s. The reinstatement also added a few new protections for tipped workers. The Labor Department also, as you would expect, rescinded some very bad anti-worker rules that the Trump administration put in place.
But that’s about it. Part of the problem is that the Labor Department hasn’t got anybody confirmed in two of the department’s top positions, assistant secretary for the Employee Benefits Security Administration and assistant secretary for the wage and hour division. (Biden has nominated Lisa Gomez and Jessica Looman for these jobs.) An assistant secretary for mine safety and health, the agency that will address silica, wasn’t confirmed until March of this year. David Weil, Biden’s first choice to run the wage and hour division, lost his Senate confirmation vote because Senators Kyrsten Sinema, Mark Kelly, and Joe Manchin wouldn’t support him. That was a huge setback. But part of a Cabinet secretary’s job is to get his nominees through the Senate, no? And (in Weil’s case) to pull them if they don’t have the votes to confirm.
Am I knocking Biden? Only insofar as he hasn’t given Walsh the kick in the pants he clearly needs to step up his game. Biden has been a solidly pro-labor president, especially given his narrow Senate majority. The $1.2 trillion infrastructure bill will create, according to the Economic Policy Institute, nearly 800,000 jobs, including nearly 200,000 construction jobs, more than 80,00 jobs to expand the power grid, and nearly 73,000 jobs to expand public transit. The Inflation Reduction Act, which despite the misleading name is really a climate change and tax law, contains important tax incentives for businesses to pay prevailing wages and to hire registered apprentices. The American Rescue Act provided a $300-per-week income supplement to unemployment benefits—half the $600 sweetener that preceded it but still valuable to working people who’d lost their job because of Covid. Biden also lent a degree of bully-pulpit support unusual for a president to Amazon’s unionization effort. And of course he installed Jennifer Abruzzo as general counsel at the National Labor Relations Board, where, as I’ve detailed earlier, she’s been a fantastically energetic champion for workers’ rights.
Steven Greenhouse, dean of American labor reporters, now with the Century Foundation, details other Biden pro-labor accomplishments here. A name that doesn’t figure in Greenhouse’s review is Marty Walsh. Greenhouse mentions Walsh in passing only to note, with approval, that Walsh is a former union leader. Walsh ran the Building and Construction Trades Council for Greater Boston in 2011–2013. Before that, Walsh was president of Local 223 of the Laborers’ International Union of North America, or LiUNA. Walsh was also a state legislator in Massachusetts and, from 2014 until March 2021, mayor of Boston.
Walsh was, I gather, a pretty good mayor. His neighbors in Boston’s Dorchester neighborhood may be forgiven if they think he’s still mayor, because he’s there an awful lot. “Where’s Walsh?” asked Rebecca Rainey and Paige Smith of Bloomberg Law on March 28. For the first eight months of his tenure, they reported, Walsh spent 49 days in Washington and 45 days on the road (mostly playing ambassador to union officials around the country). We shouldn’t begrudge Walsh his 45 days on the road. Playing ambassador is an important part of Walsh’s job, and he’s good at it. He’s visited picket lines, he was the first labor secretary to meet with the powerful West Coast International Longshore & Warehouse Union since Frances Perkins met with president Harry Bridges in 1934, and he helped broker the end to a nurse’s strike in Massachusetts.
But let’s talk about Massachusetts. During those same eight months, Bloomberg Law reported, Walsh spent 129 days in Boston—more than twice the time he spent either in Washington or on the road. Boston is a delightful city that I’m always happy to visit. But it is no longer (as Oliver Wendell Holmes père described it in 1858) the hub of the solar system, and, for better or worse, it’s not where the federal government resides. North Carolina’s Republican Representative Virginia Foxx, the rabidly anti-labor ranking member on the House Education and Labor Committee, has harassed Walsh about spending so much time in Boston. Fox has harassed him about a lot of other things too, but I won’t get into these because all they reveal is that Fox hates unions. But in this instance Fox has a point. Why is Walsh so infrequently in the place where he is most needed? In July, Walsh spent fewer than 10 days in Washington.
“Where’s Walsh?” is a common refrain on Capitol Hill. Before the CHIPS bill cleared the House in July there was some back and forth over whether a pot of apprenticeship money would go to the Commerce Department or to the Labor Department. “We kept saying, you gonna get to the table?” a former House staffer told me. Walsh, this person said, was “absolutely invisible.” The money went to the Commerce Department. While the Build Back Better bill was still in play, there was some back and forth over whether a different pot of apprenticeship money would go to the Education Department or the Labor Department. It went to the Education Department. “When the chance was there to stick up for his agency,” recalled the former House staffer, “I’m like, really? OK?”
“It’s not that they’re doing nothing,” explained someone else who has direct knowledge of Labor Department policymaking. “It’s just that they’re not following an agenda from the secretary’s office.” Walsh, this person explained, isn’t particularly interested in creating an agenda, because the nuts and bolts of policymaking simply don’t interest him. Even people who defend Walsh (there are some) concede this point. They say that Walsh has excellent people skills (his critics agree) and keeps labor unions happy. The wonky details, these people say, are what Walsh has a deputy to take care of while Walsh does the glad-handing.
The deputy labor secretary, Julie Su, was previously secretary for the California Labor and Workforce Development Agency. She is widely admired for her policy chops. But labor regulations are always a hard sell at the White House—even in a Democratic White House—and even in this pro-labor White House. That’s because labor regulations anger chambers of commerce in every city and town in America. Because the Labor Department is a Cabinet department (not an independent agency like the NLRB), it can’t scratch itself without first getting permission from the White House. When the person who’s asking is number two rather than number one, it’s that much easier for the White House to say no.
The Labor Department’s press office, of course, takes exception to these criticisms. “Secretary Walsh has actively directed the department’s work on regulatory actions and legislative efforts,” a spokesperson told me in an email. She said Walsh has “moved on an ambitious proactive regulatory agenda” and “made specific determinations related to policy matters.” In reply, all I can say is that’s not what others told me. The spokesperson also furnished, unprompted, a prepared statement from Brian Deese, director of the White House National Economic Council, that called Walsh “extraordinarily effective in advancing President Biden’s core legislative accomplishments” and specifically praised the value of Walsh’s experience as a former labor leader.
I agree that Walsh’s background with the building trades, the Democrats’ least reliable ally, has come in handy. It helped him secure the prevailing-wage tax break in the IRA, and it helped him keep the building trades on board with some important climate-related provisions in the IRA and the infrastructure bill. Walsh is also said to take a rare personal interest in the forthcoming Davis-Bacon regulation, a huge issue for the building trades. But Walsh’s interest seems to fall off sharply on matters that don’t concern the building trades.
Labor folks really like Walsh. He respects them; he is one of them. That’s important. But it’s more important that Walsh pick up the pace on regulations. That’s what he’s there for, and four years will pass very quickly. Let’s hope by next Labor Day Walsh has a lot more concrete achievements to boast about.
