The picture for robust protection of workers’ rights at the federal level is not a pretty one these days. In the Obama Administration, there were three basic components to our strategy to advance worker protections: (1) promulgate regulations that keep worker protection statutes up to date and relevant in today’s economy; (2) use enforcement resources strategically to attain the most effective compliance with a focus on protecting the most vulnerable workers; and (3) support legislation that would expand protections to make the workplace more fair for more workers.
The bad news for American workers is that in each of these areas, the Trump Administration and the Republican Congress have taken the country backwards over the past two years. But there is good news. All is not lost for workers who need the law’s protection to ensure that they are paid what they are owed, kept safe and healthy on the job and treated fairly. State and local governments are stepping up, not only to fill in the void left by anemic federal protection of worker rights, but also to advance new strategies for effective and efficient enforcement:
Reversing regulatory rollbacks: The Trump Administration is rolling back many of the labor protections put in place by the Obama Administration. In the Department of Labor and National Labor Relations Board’s latest regulatory agendas, the Trump Administration formalized its intent to undo the Obama Administration’s efforts to expand the right to overtime, define the joint employer standard to capture the reality of the modern economy’s business models, update occupational safety and health standards and support union organizing. As the Trump Administration rolls these important protections back, several states are pushing forward. For example, at least five states have raised their overtime thresholds to exceed the federal threshold (Alaska, California, Colorado, Maine and New York). Most recently, Pennsylvania Governor Tom Wolf announced that he would use his regulatory authority to raise his state’s overtime threshold to approximately the same level as in Obama rule by 2022.
Improving strategic enforcement: There have been many signals from the leadership of the Trump Department of Labor that they have shifted enforcement priorities significantly from the “strategic enforcement” approach adopted by the Obama Administration. Just last week, the Department announced that it would extend its PAID (Payroll Audit Independent Determination) program, an initiative to create a safe harbor for employers who violate the Fair Labor Standards Act. The program directs DOL resources to working with employers who come forward with the results of voluntary audits of their payroll practices—in return, employers avoid further scrutiny and the imposition of penalties or liquidated damages, paying only the back pay owed employees for any noncompliance found. Importantly, the PAID program diverts resources from being used in a strategic manner to leverage the greatest impact possible or to target employers and industries with the worst records. Instead, it is a reactive approach that allows employers to dictate where DOL invests its enforcement resources.
Several states and cities, however, have picked up the “strategic enforcement” baton and are enhancing their ability to enforce labor standards in a more sophisticated and vigorous manner than ever before. In California, Labor Commissioner Julie Su is using data to focus on industries that have the highest rates of violations and that employ the most vulnerable workers. In San Francisco and Seattle, the labor standards agencies are developing new partnerships with community groups, such as worker centers, to gather information from the grassroots about where the most serious enforcement problems are. And new resources are being directed to enforcing labor standards. Traditionally, state attorney general offices were only minimally involved in enforcing labor standards—bringing enforcement actions in few cases. Now, seven state attorney general offices have units dedicated to enforcing labor standards and the number is growing. They are coordinating in an unprecedented way to bring nationwide or regional cases against companies whose unlawful practices cross state lines.
Evolving labor standards: It would be an understatement to say that movement is unlikely on worker protection legislation long championed by the Obama Administration, such as bills to advance pay equity, paid family and medical leave, fair scheduling and a higher minimum wage. If you look at the list of hearings held this Congress in the House and Senate committees with jurisdiction over enforcement of labor protections, you see an effort to move legislation to make the workplace more accommodating of employer interests and less protective of worker rights. Again, the picture is very different at the state and local level—and not just in areas with unitary Democratic control. For example, here in Massachusetts, where there is a Republican governor, the state recently enacted new legislation to promote gender pay equity, protect women from pregnancy discrimination and provide paid family leave. States and cities are conducting exciting experiments with the next generation of labor standards, not just state level versions of bills that have been stalled at the federal level for a long time. For example, New York City, Seattle, San Francisco and Oregon last year passed laws to promote predictable scheduling practices. Although now stalled by litigation, Seattle passed the first-of-its-kind ordinance to give collective bargaining rights to Uber drivers.
To understand and support this energy at the state and local level, Harvard Law School’s Labor and Worklife Program has launched the Project on State and Local Enforcement. The Project will partner with enforcement agencies, lawmakers, worker advocates, and others to fill a critical need in examining and strengthening innovative state and local actions and initiatives. Specifically, the project will:
- Improve enforcement by engaging new players in this field, and activating and developing networks among them, including state attorneys general, local prosecutors, and others;
- Provide technical assistance and consultations to lawmakers, advocates, regulators, unions, labor departments, and others engaged in developing legislative and regulatory proposals and in enforcing basic labor standards; and
- Research emerging issues in labor law and enforcement strategies.
The project will be directed by Terri Gerstein, who has held leadership positions in New York state government, both in the attorney general’s office and the state labor department. Her hallmarks as an enforcer included taking a strategic, proactive approach; collaborating extensively both inside and outside of government; and spearheading innovative programs to protect workers’ rights, such as launching the “Labor on Wheels” van for community outreach in New York; overseeing implementation of groundbreaking legislation including New York’s Wage Theft Prevention Act and Domestic Workers Bill of Rights; and leading an inquiry that led numerous national retailers to stop using “on call” shifts.
American workers have lost a great deal by not having a President or Secretary of Labor who prioritize looking out for their interests in how they use their regulatory and enforcement resources and authority. The patchwork of state and local laws and enforcement efforts cannot fully substitute for a strong federal commitment to protecting workers, especially for workers who live in parts of the country where state officials share the Trump Administration’s lack of concern. My hope, however is that the Project on State and Local Enforcement will help make the most of efforts where there is a will to stand up for workers and protect their rights.