Friends,

Last week, when President Joe Biden forced the nation’s rail workers to accept a contract without the paid sick leave benefits they requested, he insisted, “I’ve supported paid sick leave for a long time, and I’m going to continue that fight until we succeed.” He was noticeably vague on how he would continue that fight — so we are laying out options for him. For today’s featured story, Rebecca Burns, Julia Rock, and Matthew Cunningham-Cook spoke with dozens of experts and poured over arcane regulations to detail just how Biden could deliver what he’s promised.

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Rock the boat,

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President Joe Biden, right, and Pete Buttigieg. (AP Photo/Wilfredo Lee)

By Rebecca Burns, Julia Rock, and Matthew Cunningham-Cook

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When President Joe Biden pushed through a bill last week forcing a contract on exhausted rail workers, he vowed to continue fighting for paid sick leave, a key demand in the years-long contract battle between the increasingly overworked workers and their profit-soaked employers. Department of Transportation Secretary Pete Buttigieg echoed that promise in a widely-watched grilling by CNN’s Jake Tapper.

But after intervening on the side of the railroads, Biden and Buttigieg have yet to say just how they will try to secure sick days for 125,000 rail workers, who are among the 33 million U.S. workers lacking access to a benefit that’s universal in other wealthy nations around the world.

In truth, the administration has several possible avenues it could pursue to try to deliver those protections. Biden could try to expand an executive order requiring federal contractors to provide sick leave, Buttigieg could robustly enforce existing rail safety laws to challenge harmful attendance policies, or the administration could use the last few weeks of Democrats’ control of Congress to push for the passage of a national paid sick leave bill languishing in committee after being reintroduced 10 times in the last 15 years.

To be clear, the first of these options would almost certainly trigger a legal challenge on the basis of the arcane rail laws that the rail industry has relied on to preempt its workers from key federal protections. And all of these moves would require picking a fight with rail industry donors who have funneled almost $20 million to Democrats in the last decade.

Still, rail workers — and no less than the editorial board of the Boston Globe, the hometown newspaper of Biden Labor Secretary Marty Walsh — are calling on Biden to take on the battle.  If he doesn’t, the president risks signaling to rail barons that they have free rein to continue running roughshod over workers’ rights, further stressing the nation’s supply chain and the workers who make it run.

To be sure, the railroads have the funds to provide this benefit to their workers. On Tuesday, just four days after Democrats passed their strike-busting bill without paid sick leave, Norfolk Southern Railway, one of the biggest freight companies, boasted that it would be enriching its shareholders with stock dividends and buybacks. And according to financial records reviewed by The Lever, providing workers with seven paid sick days would cost railroads just four days of recent profits.

“Biden did us a disservice by coming out and surprising us with that statement [calling on Congress to intervene],” said Devin Mantz, North Dakota legislative director for the Brotherhood of Maintenance of Way Employees, the third largest U.S. rail union. “He has the opportunity now to right that wrong.”

Biden Could Expand The Federal Sick Leave Rule

There’s an all-too-familiar backstory to why rail workers lack sick leave in the first place: After the Obama administration issued a headline-grabbing directive requiring most federal contractors to provide paid sick leave, labor and business battled over the details of its implementation. In the end, business carried the day.

On Labor Day in 2015, the Obama administration announced an executive order extending paid sick leave to an estimated 300,000 employees of federal contractors — one of at least 15 such orders during Obama’s tenure that made use of the federal government’s purchasing power to set labor, safety, and environmental standards for companies that provide goods and services for the federal government.

While hailing the order, from the outset labor advocates flagged problems with the fine print. Among other things, it “unnecessarily limit[ed]” the types of federal contracts covered, thereby excluding groups of workers including U.S. Postal Service, airline, and most railroad employees, according to comments submitted at the time by the worker advocacy organization A Better Balance.

While railroads aren’t automatically considered federal contractors, the departments of defense, interior, agriculture and energy collectively pay out millions to the nation’s seven largest railroads. And the railroads themselves made the case that they qualify as federal contractors last year, when they argued in court that Biden’s vaccine mandate required rail workers to get the COVID-19 vaccine.

When the Obama administration set out to finalize the sick leave rule for contractors, dozens of labor and community organizations submitted comments urging the Department of Labor to widen its scope and cover as many workers as possible.

Predictably, business — including the Association of American Railroads (AAR) — lobbied in the opposite direction, arguing that compliance with the new rule would be too complicated and costly.

“The employees of AAR’s members already receive generous benefits that no other industry’s employees receive,” the rail association wrote, referring to the partial sick pay railroad workers pay into and can start receiving from the Railroad Retirement Board after they’ve been unable to work for four days. “They should not also be entitled to even more benefits through mechanisms such as [the executive order].”

The rail association — whose key members include BNSF, the rail behemoth owned by Obama mega-donor Warren Buffett’s Berkshire Hathaway — is a formidable influence machine. In 2016 alone, the association spent nearly $5 million lobbying the federal government, according to OpenSecrets. Its efforts included throwing its weight behind railroad mergers and fighting safety improvements such as legislation aimed at stopping exploding oil trains in the wake of the 2014 Lac-Mégantic disaster that killed nearly 50 people.

In its comments to the Labor Department on the new paid sick days rule, AAR argued for a special carve-out for the industry, noting the separate federal laws that govern its operations as well as the “special difficulties” that railroads would face from increased employee absences — difficulties created, in large part, by the industry’s so-called “precision-scheduled railroading” strategy, which has in practice meant slashing staffing to boost profits.

Applying the rules governing other federal contractors to rail “defies common sense,” the association also argued, because government freight might only be transported in “one or two cars in a hundred-car train.” This state of affairs would therefore require “entirely new forms of record-keeping” to determine which employees working on each train would be entitled to sick leave under the new rule.

In the end, the railroad and business lobbies won out. While the Department of Labor rejected a push from railroads and airlines to explicitly write them out of the new rule, the final version retained the narrow coverage that in practice excluded most of their workforces.

Railroads went on to win another round of victories in the courts, successfully suing the states of Washington, Massachusetts, and California in order to avoid complying with the states’ recently passed sick leave legislation.

After California appealed the ruling, a U.S. appeals court affirmed that the 1938 Railroad Unemployment Insurance Act — which stipulates that it provides the “exclusive” source of illness and unemployment benefits for rail workers — preempts any state law attempting to provide these workers additional sick leave benefits.

In its 2015 comments to the Labor Department, AAR suggested that the same logic would apply to any executive order extending sick leave to railroad workers — but that argument has yet to be tested in court.

Railroad unions members and progressive commentators have called on Biden to issue an executive order along the lines of the 2015 Obama order, even if it would mean a legal fight.

“I absolutely believe that Biden has the authority to, and should, give the executive order to expand the existing executive order Obama did in 2015 to mandate that all federal contractors have paid sick leave — just as we were asking for,” said Mantz at the Brotherhood of Maintenance of Way Employees.

Buttigieg Could Target Worker Fatigue

Absent an executive order from Biden, Transportation Secretary Buttigieg could use his regulatory authority to crack down on practices, like the lack of paid sick leave, that create safety risks on freight railroads.

Long before Biden stepped in to help arbitrate an agreement between railroad bosses and workers this summer, his administration was facing pressure from unions and Democratic lawmakers to fulfill its mandate from Congress to address fatigue in the railroad industry. They argued that the railroad industry had created massive safety risks by slashing their workforces and implementing “precision-scheduled railroading” strategies that burden employees with long work days and shift assignments with little notice.

Buttigieg’s Transportation Department has broad statutory authority to address these fatigue issues, thanks to a 2008 railroad safety law. Unions and lawmakers have argued that his authority extends to challenging the onerous attendance policies instituted by railroad companies in part to manage the effects of their decisions to gut their workforces — policies that were implemented without bargaining with the unions.

In 2008, Congress passed the Rail Safety Improvement Act, amending the authorizing statute for the Federal Railroad Administration (FRA) to strengthen rail worker safety protections. That law included a provision requiring railroads to come up with “safety risk reduction programs,” including “fatigue management plans” to reduce the risk of safety hazards arising from worker fatigue.

But the federal government didn’t undertake rulemaking on the fatigue management plans for the freight rail industry until 2020.

In June 2022, the Transportation Department and the FRA promulgated a final rule to require railroads to submit “fatigue management plans” for regulatory approval by July 2023. In its current form, the rule provides little specificity on the key driver of fatigue: the inability of railroad workers to take days off without being subjected to negative repercussions under draconian attendance policies.

But Lever interviews with railroad experts suggest that the FRA, under Buttigieg’s guidance, could require these fatigue mitigation plans to contain provisions pushing back against the attendance policies, such as requiring paid sick days.

The national legislative representative for the Brotherhood of Locomotive Engineers and Trainmen (BLET) said in June, “One thing is clear: Our individual members need to be empowered to say when enough is enough and get a day off when they need it and request it. Given the railroads’ recent behavior regarding the implementation of fatigue-producing attendance plans, it’s hard to be optimistic about how well they craft (and how much they involve our members) in having a say over their lives at work.”

Last spring, in a letter urging the Biden administration to complete its fatigue management plan rule, top Democrats on the House Committee on Transportation and Infrastructure argued that acceptable fatigue management plans could not coexist with industry policies that prevented workers from taking time off when sick. Such statements suggested the agency could require railroads to grant sick time as part of their safety programs.

“Unions representing railroad workers and individual workers have sounded the alarm on rail worker fatigue, which they believe is worsened by the deployment of [precision scheduled railroading] and the resulting push to do more work with nearly one-third fewer people on the job,” wrote Reps. Peter DeFazio (D-Ore.) and Donald M. Payne, Jr. (D-N.J.) in an April 6 letter to Amit Bose, head of the FRA. “Compounding this are attendance policies for operating crewmembers at some of the Class I railroads that, on the face of it, allow workers to take time off for unexpected events or when feeling ill or fatigued but, in practice, may then punish workers for doing so.”

In the same letter, DeFazio and Payne argued that railroad fatigue management plans that don’t ensure workers can take time off when sick shouldn’t be approved by the FRA. “We believe that attendance policies that not only contribute to fatigue but also penalize workers for taking off when fatigued or ill simply cannot coexist with any serious fatigue risk management program,” they noted.

The railroad unions similarly argued that rail industry policies that prevent workers from taking time off when fatigued or sick fly in the face of safety efforts under the 2008 law.

“FRA also has correctly identified ‘policies and practices regarding marking off’ as a factor that increases fatigue,” wrote the Brotherhood of Locomotive Engineers and Trainmen and the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers in a February 2021 comment on the proposed rule. “Train employees do not receive pay for marking off fatigued if they are allowed to do so; the same is true for marking off sick. They can and do, however, receive reprimands for doing so.”

Regulators acknowledged such concerns in their final rule issued in June, noting that “the Congressional mandate for [fatigue risk management plans] dictates that covered railroads ‘consider the need to’ address employee scheduling practices.”

Congress Could Give 33 Million Workers Paid Sick Leave

While the recent railroad contract battle has thrust paid sick leave into the limelight, it isn’t just rail workers who lack this basic employment benefit. Thirty-three million American workers don’t have access to any paid sick leave after a temporary pandemic paid sick leave program expired in December 2020.

But Congress could seize the moment and pass a bill requiring all employers to provide seven paid sick days per year.

Democrats only have a few weeks left where they control both wings of the legislature, and enacting paid sick leave has long been a party priority. There’s also a clear opportunity to get it done, if party leaders want: Congress is currently debating the National Defense Authorization Act (NDAA), which can be a vehicle for Congressional leaders to add on difficult-to-pass legislative priorities because the must-pass bill funds the military and keeps the government from shutting down.

Right now, Senate Majority Leader Chuck Schumer (D-N.Y.) and outgoing House Speaker Nancy Pelosi (D-Calif.) are trying to help coal baron Sen. Joe Manchin (D-W.Va.) include a measure that would expedite approval of fossil fuel pipelines in the must-pass legislation, against the will of the party’s progressive flank. Biden has said he supports including the pipeline measure in the NDAA.

Instead of using the NDAA to quickly approve new fossil fuel infrastructure, Democrats could use the bill to pass universal paid sick leave legislation.

“There’s really no excuse for railroad workers not to have sick leave,” said Sherry Leiwant, co-president of A Better Balance. “We would hope that Congress would take it upon itself to pass a paid sick days law that covers railroad workers, and all the 33 million workers in the United States who have no sick leave at all.”

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