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With the inauguration days away, the Trump administration will soon take the federal government in a vastly different direction, laying waste to advances in environmental protection, public health, workers' rights, and more. States must step into the breach to protect basic rights; there's simply so much to do.
One way states can make quick advances is to lock in at the state level recent federal wins, by enacting state statutes providing the same protections as Biden administration regulations. Many such protections are broadly popular, like expanding overtime pay and banning noncompete provisions in employment contracts. But these policies are at risk. Trump's incoming team will likely abandon or reverse many important rules, plus his federal court appointees are already blocking numerous advances.
At this moment, states should take advantage of the head start offered by policies developed by the Biden administration over the past four years. Before proposed federal regulations make it out the door, they are analyzed 50 different ways, with a thorough review of all evidence on costs, benefits, and impact. Once regulations have been formally proposed, the public provides extensive input, often tens of thousands of comments. State lawmakers can hit the ground running right now by building on the immense record supporting many Biden-era policies and simply write those policies into state law—as a number of states are already doing.
How would this work in practice? As an example, here's how lawmakers could adopt key Biden-era wins at the state level in relation to workers' rights.
States could broaden overtime coverage so that low-level employees who are managers in name only can get this critical protection. Overtime laws don't cover managers or similar high-level employees, but if their salary is low enough, such workers have the right to overtime, no matter their job title. The Biden labor department raised this salary threshold to $58,656, expanding overtime to 4 million workers. But a Trump-appointed judge blocked this raise. To ensure their workers get the overtime they deserve, states should adopt the Biden-rule overtime threshold, or higher, as Colorado and Washington have done.
Then there are "noncompete" restrictions that prevent workers from leaving their jobs to take a better-paying one with a competitor company, as well as abusive clauses that force workers to pay money to their employer if they want to quit. The Federal Trade Commission (FTC) enacted a rule to make virtually all of these illegal, which would boost workers' pay and job mobility, as well as spark innovation. But this rule, too, has been blocked by a Trump-appointed judge. Many states have already curbed or banned these provisions; all states should do the same, as Minnesota did last year.
Also, the climate crisis is causing extreme heat, which kills an average of 34 workers per year. The federal Labor Department proposed a rule that lays out manageable, commonsense requirements for employers, like providing water, shade, and rest breaks. Again, this rule's fate is now uncertain, so states should enact their own heat rules, as several, most recently Maryland, have done.
The Biden administration fiercely supported workers' unionization rights. Federal labor law limits state authority here, but states can, for example, make striking workers eligible for unemployment insurance benefits, like other employees who are temporarily out of work. New Jersey and New York have done this.
States can follow the FTC's lead by strengthening anti-trust laws, and enforcing them aggressively, to fight the harm to workers from mergers and other forms of corporate over-concentration—like the Albertsons-Kroger merger, which federal agencies and state attorneys general blocked. And states can follow the federal labor department's lead in publishing enforcement data online, so policymakers, media, procurement officials, and the public can readily learn about businesses' compliance histories.
The above policies are just a first cut at state-level steps to protect workers in the coming years—a sensible place to begin, but not the entire roadmap.
While these examples relate to workers' rights; a similar punch list exists in other areas, too, such as in relation to consumer protection and competition policy. It's never simple to enact new laws or rules, but solid Biden-era policies are already fully baked, which should help states move quickly in enacting them.
To be sure, policies that support working families or regulate corporations will be less feasible in some states because of their political landscapes. But such laws will protect people in the states that do adopt them, also creating upward pressure on business norms.
As the federal government recedes from protecting working people and communities, state leaders will need to be bold and creative in filling the void and fighting back. Swiftly building on fully vetted federal wins is a smart place to start.
Terri Gerstein directs the Labor Initiative at New York University's Robert F. Wagner Graduate School of Public Service.
Paul Sonn is the state policy program director at the National Employment Law Project.
The views expressed in this article are the writers' own.
