December 13, 2019
While taking a more moderate position than other Democratic candidates on many issues, former Vice President Joe Biden continues to be among the strongest pro-labor proponents, proposing this week that some labor violations carry criminal penalties and that individual managers be held personally liable.
Flawed analogy to political elections: At a Teamsters event, Biden said: "If you're engaged in trying to prevent people from voting in a polling place in a regular election, what happens? You can be held criminally liable. What is the fundamental difference between saying that a powerful employer can intimidate workers to not get engaged and vote for a union, that you have a right to vote for?"
Yet, most accusations of labor law violations are far removed from preventing voting in a general election. Labor law violations can be very nuanced, relying on frequently-shifting interpretations of the law’s often-vague prohibitions. For example, an employer who predicts what could happen if a workplace is unionized (e.g., increased likelihood of strikes with lost wages) may be accused of an illegal threat, even if the prediction is a realistic one. There are myriad other areas where the law is equally unclear.
Why it’s important: Organized labor has long sought to convert the remedies under the law governing union organizing from a “make whole” approach to a punitive one, with large fines and potential jail terms. Under current law, the vast majority of alleged violations are settled or otherwise resolved relatively quickly, even those with merit. Grey areas are often what gets litigated. Blatant violations are more likely to occur by small employers lacking the resources to hire sophisticated labor lawyers who can explain the complications and nuances of our mid-twentieth century labor laws.