Series: The New Labor Law Enforcers
State attorneys general, district attorneys, and localities like cities are increasingly key players in protecting workers’ rights. This new series by Terri Gerstein provides snapshots of enforcement and other actions to protect workers’ rights by these new and emerging labor law enforcers at the state and local level. Gerstein is an EPI senior fellow and director of the state and local enforcement project at the Harvard Labor and Worklife Program, who has chronicled the growing influence of these new enforcers.
Recent cases brought by state and local enforcers include the recovery of $130,000 for New York City building superintendents, who were paid no wages at all, and a recovery of nearly $220,000 for workers in a Seattle specialty bar and grocery store based on minimum wage and paid sick leave violations. In addition, prosecutors on both sides of the country took action against contractors in the construction industry: The King County (WA) prosecuting attorney concluded a case in which a worker was killed in a preventable trench collapse, while the Manhattan district attorney indicted several interior construction companies and their owners for a conspiracy to evade more than $1.7 million in workers’ compensation premiums.
Here’s a snapshot of some enforcement actions in February and March 2022.
The New York Attorney General (AG) announced the settlement and recovery of $130,000 in a case involving building employers that failed to pay live-in superintendents any wages at all, and compensated them only through providing lodging (which was needed to perform the job).
The Seattle Office of Labor Standards recovered nearly $220,000 for 29 workers in a case involving alleged violations of minimum wage and paid sick and safe leave laws by Super Deli Mart, a convenience store and neighborhood bar selling micro-brew beers, specialty wines, sandwiches, and T-shirts and other souvenirs.
Criminal prosecutors took on harmful practices in the construction industry. The Manhattan DA’s office indicted four interior construction companies, their owners, and a manager for conspiracy to evade more than $1.7 million in workers’ compensation insurance premiums over five years. The defendants allegedly created a $20 million off-the-books cash payroll during that period.
In Washington state, the owner of a construction company was sentenced to 45 days in jail, 18 months of probation, and a $25,000 fine (in addition to prior labor department fines) after being held criminally responsible for a worker’s death caused by a trench collapse, in a case brought by the King County Prosecuting Attorney. According to former Occupational Safety and Health Administration (OSHA) official Jordan Barab, trench collapses are well-known and avoidable construction hazards.
State AGs also filed amicus briefs in two Supreme Court cases concerning access to courts for workers whose rights have been violated. In the case of Southwest Airlines Co. v. Saxon, a coalition of 18 state AGs filed an amicus brief in the U.S. Supreme Court, arguing that airport cargo workers are among the group of transportation workers exempted by statute from the Federal Arbitration Act, and therefore may bring their cases in court and cannot be subject to forced arbitration. Forced arbitration prevents workers from bringing cases before a judge, instead requiring them to bring claims in a secretive process before an arbitrator paid by their employer. Forced arbitration suppresses worker claims, undermines labor standards, and allows wage theft, discrimination, and other violations to persist without being addressed.
In the case of Viking River Cruises, Inc. v. Moriana, the California AG filed an amicus brief supporting the state’s Private Attorneys General Act (PAGA), a law that allows workers whose state labor rights have been violated to sue employers for penalties on behalf of the state. (A 2014 California Supreme Court case upheld PAGA as not preempted by the Federal Arbitration Act because PAGA cases are disputes not between a worker and an employer, but rather between the employer and the state, since workers bring PAGA cases on behalf of the state.)
In addition, four state AGs filed an amicus brief supporting a lawsuit challenging a Trump-era rule to allow increased line speeds and self-monitoring by pork processing plants. While the AG brief focuses on the food safety issues, the rule also has consequences for workers, who are at greater risk of injury in this already-dangerous industry because of increased line speeds.
Several reports were issued in relation to state and local enforcement. In Pennsylvania, the bipartisan-nominated Joint Task Force on Misclassification of Employees issued its annual report, with 15 unanimous recommendations. The report included recommending the adoption of the ABC test “as a baseline standard for the commonwealth to clearly delineate the difference between ‘employee’ and ‘independent contractor,’” as well as additional funding and powers for state agencies. The Philadelphia Office of Labor Standards and Office of Worker Protections also issued their 2021 annual report, and the Chicago Office of Labor Standards issued its annual report for 2021 as well.
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