According to Benjamin I. Sachs, a Harvard Law School professor, the board could also seize on a legal provision that allows the federal government to cede jurisdiction to the states for regulating labor in certain industries. That could enable a state like California or Washington to create an arrangement in which gig workers, with the help of a union, negotiate with companies over wages and benefits on an industrywide basis in that state, a process known as sectoral bargaining.
Under such a system, a union would have to show support from a fraction of workers in the industry, such as 15 or 20 percent, to be able to negotiate with multiple gig companies on behalf of all workers. By contrast, under federal law, the union would typically have to win majority support among the workers it sought to represent, a daunting challenge in a high-turnover industry like gig work.
Other labor experts, like Wilma B. Liebman, who led the labor board in the Obama administration, affirm that the board can cede its authority to states but are more skeptical that it would do so in the case of gig workers.
Helping Home-Care Workers
The federal government, through its control of the Medicaid program, could accomplish something similar for home-care workers, who usually work independently or for small agencies that have little power to raise pay because states set the rates for their services. The agencies sometimes resist union campaigns aggressively for fear that allowing workers to bargain for higher wages will put them at a competitive disadvantage.
A handful of Democratic-leaning states, like Washington, have addressed this issue by allowing workers to bargain with the state for rate increases that effectively apply industrywide, eliminating the downside that a single agency would face if it raised wages unilaterally.
The Service Employees International Union, which represents home-care workers across the country, believes that the Biden administration could encourage other states to create such industrywide bargaining arrangements — for example, by making additional money available to states that adopt this approach. Hundreds of thousands of additional home-care workers could benefit.
The federal government, under a provision in the Medicaid law that requires states to keep payments high enough to ensure an adequate supply of home-care workers, could also intervene directly to raise wages and benefits for these workers.