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Rebalancing Economic and Political Power:

A Clean Slate for the Future of American Labor Law

Reform Ideas Memo: Working Group IV B

1. Big Idea #1: Give Working People the Power to Adjudicate Workplace Violations Introduction The enforcement of labor standards and laws is broken for working people because, in too many ways, that system is rigged. That is particularly true when it come to the federal adjudication of labor violations. Currently, a majority of the members of the National Labor Relations Board, the administrative body tasked with enforcing and adjudicating violations of the National Labor Relations Act, are openly hostile to the right of workers to collectively bargain. At the same time, Republicans in the Senate have been transparent about their intent to pack the federal judiciary conservative, business friendly judges. No reimagining of U.S. labor law can be complete without simultaneously reimagining the process by which labor law violations are adjudicated. Through the clean slate project, we have an opportunity to dream up a more fair adjudication regime that re-balances how labor disputes get settled in favor of working people. Discussion The purpose of this working group is to consider how to ensure that the right to act collectively can be meaningfully enforced and enforced in such a way so as to build worker power. Meaningful enforcement can only be meaningful if its accompanied by meaningful adjudication – that is, adjudication that helps working people build power. After workshopping with several formulations of adjudication models with academics, practitioners, and organizers, two models emerged that borrow elements from existing enforcement models in the U.S. and abroad and that could be merged into one model. Variation A – Non-Governmental, Worker-Driven Adjudication

Across the country, working people have come together to make workplaces safer and ensure that jobs pay enough to allow working people to support their families. In Florida, in 2011, CIW launched the Fair Food Program (FFP), a groundbreaking model for Worker-driven Social Responsibility (WSR) based on a unique partnership among farmworkers, Florida tomato growers, and participating retail buyers, including Subway, Whole Foods, and Walmart. In 2015, the Program expanded into tomatoes

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in Georgia, South Carolina, North Carolina, Maryland, Virginia and New Jersey, as well as Florida strawberries and peppers.

In Texas, since 2012, Workers Defense Project’s Better Builder Program has impacted more than 18,000 workers on over $1.2 billion in development. 45% of workers surveyed on Better Builder suites report receiving OSHA-10 safety training for the first time. WDP has partnered with local government to expand the program’s teeth: for example, the Austin expedited permitting program dramatically lowers waiting times for Better Builder certified companies. WDP has also partnered with other certification groups: owners who voluntarily incorporate Better Builder standards can get credit towards a LEED green building certification

In both of those models, working people have built systems that ensure high standards are in place and to ensure meaningful enforcement of those standards in sectors of the economy that often have inadequate government oversight. Those systems, the Better Builder Program and the Fair Food […], not only have the potential to improve standards for working people but also build power for working people. In both models, the standards are developed by members of the organizations and working people are active and participate in the enforcement of those standards and adjudication of violations of those programs. In a clean slate, U.S. labor policy should incentivize and support similar models. Policy makes can do that by encouraging employers to participate in similar programs by prioritizing those programs in procurement, licensing, and tax policy. In addition, the government could provide information and technical assistance to worker organizations and employers that seek to build or join those programs. The advantage of working to spread and scale non-governmental worker centered adjudication models would be two-fold: 1) It would help to ensure more meaningful enforcement of labor laws by making it more likely that violations of labor law and worker developed standards will be adjudicated in-keeping with the values and lived experiences of working people; and 2) it is a system that could create more worker power by sanctioning and incentivizing structural power - the power to develop workplace standards, and to participate in the enforcement and resolution of those standards. There is at least one significant challenge to spreading and scaling this model: It takes an enormous amount of resources to organize workers in a sector, develop workplace standards for that sector, and convince employers to adopt those standards. The model is not possible without well-resourced worker organizations that have a sophisticated understanding of the sector, including its labor and supply chains, consumer preferences, and finance structures. In addition, policies that incentivize and support such models would likely face organized opposition from employers and their associations, and the web of organizations financed by corporate interests to oppose worker power. If this kind of reform were enacted, time would be required to establish the necessary elements for any non-governmental, worker driven workplace standard, enforcement, and resolution model. Policies that support and incentivize these models could be developed at the local, state, and federal government level.

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Variation B – Adjudication Through Labor-Management Committee Under this formulation, labor-management committees could be formed for regional sectors. Those committees could be composed of members of unions and workers centers and employers who meet certain criteria and would resolve or adjudicate violations of law. This model is not new. Ample precedent for it and experience with it can be found in collective bargaining agreements (CBA) that establish labor management agreements for the resolution of disputes arising under those CBAs. In addition, works councils in Germany, Netherlands, and Spain are tasked by law with monitoring the compliance of protections under the law and CBAs.1 This model could improve adjudication outcomes for working people and assist working people to build power by placing them in the role of adjudicators. In a clean slate, U.S. labor policy should mandate the creation of labor and employment law violations for regional sectors and vest with them the authority to adjudicate violations of those laws within those regional sectors. A legal mandate should include the “scope, membership, and selection of committee members”2 as well as criteria or a process for determining the employers within the purview of the sector. In addition, those policies should provide job security and education and training for worker participants.3 Although, additional research and thinking is necessary to determine how this model could be implemented at the sub-regional level (e.g., municipal, firm-level, etc.), this variation should be implemented at the federal level and provided as an option at the state level if preemption was lifted. In addition, this variation could be implemented in conjunction with variation A discussed above. For example, U.S. labor policy could be mandate the creation of this structure for employers or sectors that do not participate in the non-governmental, worker-driven adjudication model described above. 2. Conclusion The enforcement of labor standards and laws is broken for working people because, in too many ways, that system is rigged. By adopting either or both of the worker-centered adjudication models described above, U.S. labor policy could improve adjudication outcomes for working people and assist working people to build power by placing them in the role of adjudicators.

3. Selected bibliography Small Steps Aim to Lessen Exploitation of Texas Construction Workers Neena Satija, Texas Tribune (2016)

1 See Spieler Big Idea 2 Id. 3 Id.

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The Tribune profiles the Workers Defense Project’s Better Builder Program. To become Better Builder certified, participating organizations “must offer workers’ compensation insurance, give safety training according to federal guidelines and pay their workers a living wage (which in Austin starts at $13 an hour). And they must hire someone to inspect their work site to ensure compliance.” WDP successfully campaigned to get the Austin City Council to “tie participation in the Better Builder program to the ability to get fast-tracked construction permits from the city,” incentivizing companies to meet standards set by WPD and workers themselves. Workers’ Defense Project Better Builder Program Available at BetterBuilder.com Since 2012, the Better Builder Program has impacted more than 16,000 workers on over $1.2 billion in development. 45% of workers surveyed on Better Builder suites report receiving OSHA-10 safety training for the first time. WDP has partnered with local government to expand the program’s teeth: for example, the Austin expedited permitting program dramatically lowers waiting times for Better Builder certified companies. WDP has also partnered with other certification groups: owners who voluntarily incorporate Better Builder standards can get credit towards a LEED green building certification. Branded: How the Certification Revolution is Transforming Global Corporations Michael Conroy (2009) Conroy argues that certification campaigns are effective because they rely on a stakeholder-based set of standards; a credible, independent, third-party process for certifying products; and a monitoring and auditing process. In particular, Conroy points to the growth of the Forest Stewardship Council (FSC) certification which grew to cover nearly 100 million hectares by 2007. Fairtrade accused of failing to deliver benefits to African farmworkers John Vidal & Claire Provot, Guardian (2014) A UK government-sponsored study investigated the production of flower, coffee, and tea in Ethiopia and Uganda and found that Fairtrade certification was failing to improve workers’ conditions globally. “Generally, the study found, wages were higher on farms that were larger, commercial and not Fairtrade-certified. Even comparing different smallholder sites, wages were generally lower in the areas dominated by Fairtrade producer organisations.” They study also found that children were widely employed on Fairtrade farms. The Workers Defense Project, a Union in Spirit. Steven Greenhouse, New York Times (2013)

1. Liens as an enforcement tool: The Times profiles WDP’s use of liens on building sites to fight wage theft in the construction industry. Because filing a lien can hold up transactions on the property, and sometimes cause investors to freeze financing, it can force the project owners to negotiate.

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2. Using tax incentives as leverage: When WDP learned that Apple was planning to build a $300 million operations center in Austin — and hoped to receive tax incentives — WDP “persuaded the Austin City Council to require Apple to hold talks with the group as a condition for $8.6 million in city tax incentives.” In negotiations, WDP demanded that Apple’s construction contractors pay at least $12 an hour, provide workers’ compensation, and allow WDP to conduct on-site inspections. Apple resisted, but after WDP turned up the heat on the City Council, the company agreed to meet nearly all of WDP’s demands.

3. Naming and Shaming: WDP brings media coverage to historically unseen deaths on construction sites, sometimes spurring official investigations. “A report [WDP] wrote on safety problems spurred the Occupational Safety and Health Administration to investigate 900 construction sites in Texas — leading to nearly $2 million in fines.”

Winning Wage Justice: An Advocate’s Guide to State and City Policies to Fight Wage Theft National Employment Law Project (2011) Note: The section on wage liens begins on page 113. NELP recommends wage liens as a tactic to ensure workers can recover unpaid wages. Wage liens create an important incentive for owners to fulfil payment obligations because they interfere with with property sales — giving workers who file the liens important leverage. An ideal wage lien law would also “not impose any limitations on the recovery amount, and would prioritize the lien over all other debts, regardless of an employer’s insolvency.” Id. at 114. States that have enacted wage lien laws include Alaska, Idaho, New Hampshire, Texas, Washington, and Wisconsin, but only Wisconsin allows them based only on allegations of wage theft. Id. at 114–15. Hollow Victories: The Crisis in Collecting Unpaid Wages for California’s Workers National Employment Law Project and UCLA Labor Center (2015) NELP found that Wisconsin’s wage lien statute was highly effective — and significantly more so than California’s administrative enforcement process. From 2008 to 2011, only 17 percent of California workers who received a wage claim judgment form the California Division of Labor Standards Enforcement (DSLE) were able to recover any payment. Id. at 2. “In 60 percent of cases where judgments were issued against business entities by the DLSE” employers who owed their workers for unpaid wages were also found to be “non-active” business entities (for example, because they dissolved to avoid paying the unpaid wages). Id. at 2-3. By contrast, in Wisconsin, “80 percent of suits to enforce the wage lien result in some payment of unpaid wages for the workers.” Id. at 3. According to NELP, “[i]n cases where wage liens are used to recover unpaid wages for a worker, workers recover 25 percent of the amount found to be owed” — a low figure, but more than 1.5 times higher than the average amount recovered in California’s hearing process. NELP recommends wage lien statutes as a self-help tool for workers and workers’ organizations to enforced wage and hour laws when resource-strapped agencies cannot. Justice On Our Fields: Can “Alt-Labor” Organizations Improve Migrant Farm-Workers Conditions? Manoj Dias-Abey, 53 Harv. C.R.-C.L. L. Rev. 167 (2018) Dias-Abey considers the Canadian Agricultural Workers Alliance (“AWA”), Justice in Motion (“JIM”), and the Coalition of Immokalee Workers (“CIW”). Dias-Abey finds that all three organizations have been effective by increasing rights consciousness of workers, supplementing regulatory enforcement

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— but that CIW has been the most effective by developing a unique, powerful private regulatory system. Dias-Abey characterizes CIW’s Fair Food Program as private regulation that “shapes the behavior of farm employers through standards developed by workers, monitored by an independent organization, and enforced through market sanctions.” Id. at 200. “The Fair Food Program binds participating large-scale buyers of tomatoes, such as fast food chains and supermarkets, to purchase tomatoes from growers observing labor standards set out in the Fair Food Code of Conduct & Selected Guidance (“Code of Conduct”).” Id. at 198. Any grower who refuses to sign on to the Code of Conduct — or is found in breach of its terms — loses the ability to sell produce to participating buyers, who include major fast food chains, food service companies, and supermarkets which CIW has pressured to address labor conditions in their supply chains. Id. Dias-Abey argues that clear sanctions (many violations result in an immediate suspension for a fixed period of time), a robust auditing process, and workers’ leadership in developing the standards all contribute to the program’s success. The Fair Food Program: Comprehensive, Verifiable and Sustainable Change for Farmworkers Greg Asbed & Sean Sellers, 16 U. Pa. J.L. & Soc. Change 39 (2013). Asbed & Sellers provide an in-depth look at the Fair Food Program, which is the only industry-wide program of its kind in U.S. agriculture. In its third season, the Program “will cover over ninety percent of the Florida tomato industry and directly affect the lives of over 30,000 workers.” Id. at 45. Asbed & Sellers suggest CIW is effective because it has changed the incentives at the top of the food market supply chain. Raising the floor: New directions in public and private enforcement of labor standards in the United States Janice Fine & Tim Bartley, J. of Indus. Rel. Fine & Bartley also point to CIW’s Fair Food Program as the gold standard for worker-driven enforcement. In particular, they analyze the underlying market conditions that facilitated the success of the Fair Food Program: “CIW has leveraged a concentrated part of the market, where a small number of large, reputation-sensitive buyers has a great deal of power. In addition, the supply chain for fresh tomatoes is simple, consisting of growers, buyers (grocery stores and restaurants), and potentially wholesalers – and this industry structure is bolstered by the code’s prohibition on labor sub-contracting. This simplifies the wage premium pass-through system and the traceability of participating buyers’ purchases.” Id. at 18. By contrast, in some more complex supply chains (like for electronics), private monitoring is less successful because layers of subcontracting complicate enforcement. Then There’s This: “A Decent Wage” Austin Chronicle (2013) The Chronicle profiles a policy championed by the Workers Defense Project under which, to be eligible for tax incentives in Austin, companies must agree to raise wages and safety standards on construction projects. Companies would have to pay workers at least $11 an hour (although workers remain eligible to receive higher prevailing wages), workers’ compensation coverage, OSHA basic safety training, and health care and domestic partner benefits. 1. Example Statutes Giving Humane Society Members Independent Enforcement Powers

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Some states delegate power to enforce animal cruelty laws and to arrest people who violate those laws to “Human Officers” (Officers of Humane Societies). Examples include:

• California Corporations Code § 14502: Provides for the appointment of “humane officer[s],” who may make arrests for the violation of any penal law affecting animals (in the same way as any peace officer), serve search warrants, and in some cases, carry firearms. Humane officers may not serve search warrants without providing prior notice to local law enforcement.

• Massachusetts Chapter 22C, § 57 Legislature outlines a few specific societies that may request individuals be appointed as special police officers. If these members go through training and meet standards set by state police, they are given “powers of constables and police officers to arrest and detain any person violating any law for the prevention of cruelty to animals.”

2. Enforcing Animal Welfare Statutes: In Many States, It’s Still the Wild West Elizabeth R. Rumly and Rusty W. Rumly (2012) Rumly and Rumly summarize the history of animal cruelty laws enforced by independent organizations and common features of statutes providing the ASPCA and similar groups with police powers. The first statute giving the ASPCA some police powers was passed in New York in 1888: “the ASPCA was officially given the power to enter private property to care for abused animals and to arrest violators of the anti-cruelty statute.” Id. at 25. Also, all fines collected from the defendants were to be remitted to the ASPCA. Id. Soon after, “several other states - including Massachusetts, Pennsylvania, Illinois, New Hampshire and New Jersey - passed similar legislation to that in New York and chartered local ASPCA chapters to help with enforcement.” Id. “Many elements of those laws are still on the books, in some cases substantially unchanged for over a century.” Id. Humane officers’ authority varies from state to state and may include the authority to arrest, the authority to seize property, and the ability to carry firearms. Rumly and Rumly outline three broad structures for ASPCA enforcement of animals rights:

1. In about 20 states, authority to investigate offenses against animals is limited solely to law enforcement personnel. This may include members of law enforcement who may be called “humane officers” or “humane investigators,” but who are not necessarily related to humane societies as non-governmental groups — instead, they’re more like animal control officers.

a. For example: in Illinois these officers’ roles are very strictly limited — they can’t stop/arrest people; stop/search vehicles; execute search warrants; enter any place/vehicle without consent; or remove an animal from custody from another person by force.

2. In about ten states, members or officers of humane societies (such as the ASPCA) are given the ability to enforce the laws as long as they go through some level of training or education. This standard can vary significantly from state to state.

. “Many of these states outline the training requirements that the humane society member or agent must meet, including, in various cases, a designated number of training hours, a judicial appointment, a background check, and even, in Pennsylvania, the designated topics that the training must cover.”

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a. “Other states, like Minnesota, allow their state federation of county and district societies for the prevention of cruelty to animals to ‘appoint agents for the purpose of investigating or otherwise assisting lawfully empowered officials in the prosecution of persons charged with cruelty to animals.’ However, the description of the training required for those agents is vague.”

3. In a third group of states, members or officers of humane societies are given enforcement authority on animal welfare laws solely by virtue of their membership in that society and without any additional training.

3. Human Society: Good Guys or Gestapo? R. David Dljulio (1998) The Humane Society is a private organization that has been given significant powers by the state to enforce state laws concerning cruelty to animals. This article examines some shortcomings in this approach, arguing that the Society’s well-meaning but overzealous staff violate fundamental rights by searching homes, seizing property, and arresting people without warrants. The article suggests that Humane Society enforcement may violate § 1983, because the officers act under color of state law. 4. Report and Recommendations Based on Investigation Into the Societies for the Prevention of Cruelty to Animals N.J Comm’n of Investigation (Dec. 2000) New Jersey commissioned a report investigating the powers of the state’s humane officers. The report was critical of Humane Officers’ unbridled and unaccountable discretion in investigating complaints of animal cruelty and issuing civil and criminal summonses. Moreover, the report found that the application of the statutes was erratic, rendering them ineffective as enforcers of the cruelty law. Following the report, the state instituted new training requirements for animal control officers, but there hasn’t been a follow-up analysis since the requirements were instituted.

• Note: Last year, the state repealed its statue on giving enforcement powers to the SPCA to “transfer the ‘power of humane law enforcement from the New Jersey [SPCA] and county societies for the prevention of cruelty to animals (county societies) to a county prosecutor animal cruelty task force in each county, and a municipal humane law enforcement officer appointed in each municipality.’” Goldman v. Critter Control of New Jersey, 454 N.J. Super. 418, 426, (App. Div. 2018).

5. §1983 Suits Against Animal Protections Organizations In recent cases, some state and federal courts have held that humane society officers in the second set of states (where humane society officers are delegated police powers conditional on some level of training) are “acting under the color of law” — and thus, the animal welfare societies which they work for are liable under § 1983 for any constitutional violations that occur during enforcement actions. See, e.g., Allen v. Pennsylvania Soc. for Prevention of Cruelty to Animals, 488 F. Supp. 2d 450, 462 (M.D. Pa. 2007); Snead v. Society for the Prevention of Cruelty to Animals, 929 A.2d 1169 (Pa. Super. 2007).

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Big Idea #2: Intra-firm Labor Management or Labor Committees This idea was drawn from three origins:

• some state workers’ compensation laws in the U.S. mandate joint labor-management committees to address workplace hazards;

• collective bargaining agreements in the U.S. mandate committees to address safety and other issues; and

• EU countries mandate works councils to perform intra-firm enforcement of both collectively bargained sectoral agreements and regulations.

If these committees function well, they can bring workers to the forefront of intra-firm enforcement of policies, regulations and laws. If there is a requirement that workers be educated about relevant issues and that they have adequate job security protection, then these committees potentially give nonunion workers voice, thus empowering workers in non-union settings. Moreover, these intrafirm committees may open the door to unions to encourage and train employees who participate, creating new bonds between non-union workers and the organized trade union movement. Internal committees will also arguably advance enforcement while empowering workers, by providing on-the-ground information about firm practices, as well as a mechanism for correcting violations – or reporting them to appropriate inspectorates if internal correction is not achieved. Discussants at the convening asked what might make committees like this effective (achieving the dual goal of increasing worker power and improving enforcement)? We looked at the need for a government role (funding, training, Ombudsperson as in Australia) and possible support through co-enforcement (involvement of organizations external to the workplace to assist, train). The question was also raised as to whether these committees should be limited in scope (e.g.limited to health and safety issues) or tackle broader questions. a. Variation A – Sectoral committees with government/co-enforcement support

o This variation focused on the development of sectoral committees with strong work-led councils to address broad issues, including job security; strong workplace monitoring with active worker engagement. Councils would have the power to negotiate in order to have impact on wages and conditions, broadly construed.

o This approach would not fully address the need for worker empowerment internal to firms. o Question of what would constitute a sector was left unresolved in the conversation (old

notion as in BLS? New notions? Would geography matter? etc.). o Elimination of preemption may not be enough to allow this to function effectively: if

sectoral committees cross state lines, then the model can’t be tested in a single state o Discussion assumed but did not fully articulate role of government o This approach overlaps with co-enforcement approaches, as well as with sectoral bargaining

discussions.

b. Variation B – internal (intra-firm) committees with external support o This variation focused specifically on building intra-firm worker power, while providing

external support for this effort through governmental and non-governmental organizations

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(co-enforcement model, with government as funder and inspectorate, governmental ombudsman, NGOs as trainers and intermediaries)

o In comparison to Variation A, this approach has the advantage of centering worker power within firms in order to make a day-to-day difference in workers’ lives; it has the important difference from Variation A of less unification of workers through sectors or geographical worker organizations

o Note that this approach must be accompanied by legal changes: increased guarantees of job security (just cause, employer burden of proof, ease and quickness of process to deal with retaliation, etc.); mandated education and training must be provided through trustworthy sources; government accountability through transparency and legal channels (e.g. allowance for mandamus actions with court power to order expenditures [this was not discussed but is something I’ve been thinking about – we could do this under WV law]

o Amendment to the NLRA to remove barriers under § 8a2 or removal of preemption would be essential

o Note overlap again with co-enforcement

c. Variation C – an attempt to merge the above two: Sectoral/external council with internal committees, either workers only or labor-management o Variation C resulted from a merger of A & B. It is comprised of sectoral/external councils

working together with internal committees. Again, no resolution was reached of what would constitute a sector, or whether these internal committees would be workers only, or labor-management committees.

o This variation provides the strength of both A&B described above. It gives on-the-ground power to workers within firms + overcomes the problems of too scattered a movement to build worker power + creates broader worker organizations that would be effective in insisting on effective enforcement, through both informal and formal means

o The same protections described under Variation B would have to be achieved: : increased guarantees of job security (just cause, employer burden of proof, ease and quickness of process to deal with retaliation, etc.); mandated education and training must be provided through trustworthy sources; pathways to hold government and NGOs accountable

o Sectoral processes might address some of the risks workers face in exercising voice: for example, benefits (health, retirement, disability) could be guaranteed at the sectoral level and not tied to individual firms

o Note that all of these variations retain a governmental inspectorate and government as funding source

o Under current law, this would have to be enacted at the federal level through broad amendment or replacement of the existing NLRA to allow for internal committees, clear sectoral bargaining rights, job security, etc. If preemption was eliminated, then it would still be difficult to implement at the state level, due to the interstate nature of sectors and the false lines that would be drawn if based on state boundaries.

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Selected bibliography4 David Weil, Individual Rights and Collective Agents: The Role of Old and New Workplace Institutions in the Regulation of Labor Markets, (Nat'l Bureau of Econ. Research, Working Paper, 2001) David Weil, Are Mandated Health and Safety Committees Substitutes for or Supplements to Labor Unions?, 52 Indus. & Lab. Rel. Rev. 339, 358 (1999) Matthew Finkin, Employee Representation Outside the Labor Act: Thoughts on Arbitral Representation, Group Arbitration, and Workplace Committees, 5 U. Pa. J. Lab. & Emp. L. 75 Noah Seixas et al, Intervention with a Joint Labor Management Health and Safety Committee In a Dual-lingual High Hazard Industry, February 10, 2012, at 3, available at https://www.lni.wa.gov/Safety/GrantsPartnerships/SHIP/awardees/UWDualLingualHighHazardIndustry/FinalReport.pdf Harry Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (2006)

4 I did not do exhaustive research, but these sources are relevant. I am sure there are many that look at EU Works Councils that are not listed here

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Big Idea #3: Building Worker Voice through Enhanced Enforcement Rights

Problem Statement: In many workplaces—particularly those employing a large number of low-wage workers—day-to-day experience is replete with violations of very basic labor standards. People are required to set up their workstations before punching into their shift, or clean up their area after punching out; overtime work is required at the standard rate rather than the time and one-half required by law; mandatory break times is routinely ignored. In other workplaces, being paid is an off-the- books, cash-only transaction, creating Faustian bargains between the employer and employee to flout payroll tax requirements and other required social payments. In the presence of persistent violations, keeping one’s head down, “staying out of other people’s business,” and not exercising voice in the face of unfair treatment of others is a survival strategy. If my co-workers do not choose to make waves in the face of small but persistent infractions of the law, why should I be any different?

Addressing the future of the labor movement requires recognizing the impact of “broken windows” in the workplace and its repercussions. It is difficult to imagine a surge in union organizing—even under a dramatically revised labor law—in many of the workplaces employing the most vulnerable members of the labor force. One must address the fact that workers are often reluctant to exercise the most basic rights before one can expect them to take the risks associated with engaging in workplace representation efforts of the NLRA (or a revision of that system).5

Increasing Voice through Enhanced Enforcement Addressing the Risk of Retaliation: In light of the above problem, an important dimension of enforcement policy that affects the ability to improve worker voice through independent representation is finding ways to encourage the exercise of voice. Voice through the exercise of rights can arise through a wide variety of matters related to the enforcement of labor standards, occupational health and safety, discrimination and harassment, and other workplace conditions and treatment.

A model for such action is the Mine Safety and Health Act (MSHA). Among its many strong provisions regarding enforcement, MSHA requires that mines allow a designated employee representative to accompany MSHA inspectors in the course of their four annual required inspections (underground coal) and participate in other activities established by the law. This requirement applies to all mines regardless of union status, and pay for the time spent is guaranteed (in contrast to the OSH Act). In practice, miner representatives are designated in virtually all union mines, but in only a subset of nonunion mines (in particular large mining facilities).6

However, where present, the presence of designated representatives increases the impacts of MSHA enforcement. Studies have also found that health and safety committee requirements, undertaken in state-plan OSHA program, although more limited in scope and capabilities than under MSHA, have also had positive impacts on OSHA enforcement.7 Through those designated requirements requiring an 5 Weil, David. 2012. “Broken Windows,” Vulnerable Workers, and the Future of Worker Representation. The Forum, Vol. 10, Issue 1, article 9. 6 Morantz, Alison D. “Coal Mine Safety: Do Unions Make a Difference?” ILR Review, vol. 66, no. 1 (January 2013), pp. 88–116. 7 Weil, David. “Are Mandated Health and Safety Committees Substitutes or Supplements for Labor Unions?" Industrial and Labor Relations Review. v.52, no.3, April 1999, pp. 339-360.

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agent to assist workers in their exercise of rights, enforcement systems can build the ability for workers to see the impact of their individual and collective voice at work. This, in turn, can change the foundation for laws related to worker representation.

In the 1980s and 1990s, the United Mine Workers of America built a health and safety committee structure to strengthen the system of rights provided under MSHA. The health and safety system was bolstered not only by the statutory requirements of the law, but also through collective bargaining between the UMWA and the Bituminous Coal Operators Association which provided committees created under the agreement with additional rights, responsibilities, and authorities that went beyond those created by MSHA, including the right to shut dangerous segments of a mine.8 The contract also established explicit time, training, and development requirements (including that members of the committee received training at MSHA training facilities in Beckley, WV). This further strengthened the efficacy of the system in achieving statutory goals (reduction of injuries and fatalities) while strengthening the role and activities of committees and their representatives.

Big Idea: MSHA’s strong incorporation of worker rights in the initiation of inspections, participation in them, and rights to appeal components can be a model for other federal statutes involving worker rights. All federal workplace legislation could provide comparable baseline rights for workers. These amendments to the law should include:

- Explicit statutory requirements that firms of a minimum size and greater be required to

establish worker structures to undertake to enforce rights under worker protection statutes. [Note that this overlaps with the Big Idea of worker committees.]

- The basis for establishing those workplace structures would provide for common principles of how the committees are formed, how they operate, and how their work would be compensated and protected. The language would include explicit recognition of the problems of putting such bodies in place absent an independent, third party organization like labor union.

- Explicit and strong job security protection and statutory protection against retaliation for raising concerns or participating in the committees or for exercising rights on an individual basis. This should include immediate right to reinstatement if a worker alleges retaliation and the allegation is not frivolous, as is included under MSHA, as well as increased penalties for retaliation when workers exercise voice. 9

- Designated representatives or representative bodies should receive training [again – see Big Idea on committees]. The proposal should also examine how to enhance the strength of designated representative or representative bodies (e.g. required health and safety committees) through training and experimentation. Baseline training should be financed

8 Weil, David. Turning the Tide: Strategic Planning for Labor Unions. New York, NY: Lexington Book, 1994), UMWA Safety and Health Strategy and Structure,” pp.195-201. 9 Morris Kleiner and David Weil. “Evaluating the Efficacy of NLRA Remedies--Analysis and Comparison with Other Workplace Penalty Policies.” Cynthia Estlund and Michael Wachter, eds. Research Handbook on the Economics of Labor and Employment Law, (Cheltenham, UK: Edward Elgar, 2012), pp. 209-247.

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through public resources but delivered by non-profit organizations. A model for this is the Susan B. Harwood grants under OSHA.

- Finally, exercise of individual and collective rights should be fundamental, based on rights granted as workers and not as employees to ensure that businesses cannot use organizational restructuring to avoid responsibilities. Workers should have representation and protections for exercise of rights at both their worksite and through their direct employer.

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Big Idea #4: Private right of action/qui tam as part of a labor law designed to empower workers and build their organizations

After several false starts on a broader effort, this paper is an amalgam consisting of my original one pager concerning private right of action, followed by Terri Gerstein’s one pager concerning qui tam, followed by a summary of our work group’s discussions during the Friday, April 5, 2019 convening, with our group’s conclusions. My apologies that the proper format was not followed here and there is no sourcing—the press of firm work and grading my WVU Law School seminar’s papers has occupied all of my recent available time.

Initial thoughts (Dick) on private right of action. A private right of action is generally understood to entitle an individual or organization harmed by some unlawful conduct to have the right to go into court and file a lawsuit seeking redress for the unlawful conduct. Of the state and federal labor relations and labor standards statutes currently in place, some have private rights of action so defined and some do not. In almost every instance where there is a private right of action, that private right of action coexists with some administrative enforcement mechanism. Some statutes require exhaustion of administrative remedies, some do not; some have an administrative process as the sole avenue for redress, others allow pursuit of either an administrative or a judicial remedy, some provide for pursuing one and then opting out for another, and some allow for parallel proceedings. Some with administrative enforcement regimes allow the injured party or her representative status in the process while others do not.

The current primary private sector labor law in the United States, the National Labor Relations Act, does not, generally speaking, have a private right of action10; that is, individuals or organizations whose rights under the statute have been violated cannot go into court and file a law suit to obtain redress for those violations. Rather, individuals or unions or businesses (or anyone for that matter) initiates a matter by filing a charge with the relevant NLRB regional office—the NLRB does not have independent investigative authority and thus cannot initiate a case on its own without an underlying charge. That charge is then investigated by the regional office staff, and, if merit is found, counsel for the NLRB General Counsel pursues the case through an exclusive administrative adjudicative process in the public interest. The decision to pursue an unfair labor practice complaint rests entirely within the prosecutorial discretion of the NLRB’s General Counsel; the party filing the charge can participate in the litigation of the matter but the General Counsel has absolute discretion of whether to proceed and the General Counsel’s theory of the case controls. There is no requirement that the Charging Party be represented by a lawyer, attorneys fees are generally not available, and there is essentially no discovery.

Dissatisfaction with the NLRA and its enforcement have led for calls to amend the statute to provide for a private right of action, at least for certain types of violations. For those contemplating labor law “on a clean slate,” in examining where a private right of action might fit into the enforcement of a new 10 I say “generally speaking” because a) pursuant to Section 303(b) anyone harmed by certain types of union conduct can file a federal lawsuit to obtain damages caused by the violation, and, b) under Section 301, a federal court has jurisdiction over duty of fair representation lawsuits that would also violate Section 8(b)(1)(A).

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labor law my colleague on this working group Emily Spieler has suggested the following questions (slightly modified by me): As an enforcement mechanism will this be effective? Would it expand workers participation in enforcement? Would it build toward worker organization or help enhance the power of existing unions, worker centers, or other worker organizations? If there are barriers to achieving effective and empowering worker organization participation in the enforcement process what are they? What particular statutory provision or combination of provisions would ameliorate or eliminate those barriers? In sum, how will a private right of action allow worker organizations to shape and participate in the enforcement process and what manner of engagement and/or participation will assist in building and growing such organizations—will a private right of action allow worker organizations to acquire and assert power for the benefit of the workers they represent and a more equitable society generally? Is a private right of action a necessary or desirable component of an enforcement scheme designed to achieve these goals?

With those questions setting the tone, we now turn to how to structure an enforcement effort and where within that structure a private right of action might fit if the goal is to empower workers and their organizations:

• How will workers be informed of their rights under the statute and the means of enforcing those rights? What role, if any, will worker organizations have, by statute, in the informing-of-rights process?

• Will there be an administrative agency charged with at least some aspect of the enforcement of the statute or will all enforcement take place solely through private actions? If there is an administrative agency, how best can that agency interact with workers and worker organizations?

• If an administrative agency is involved, will the administrative agency’s role be primarily investigative, will it act as a gatekeeper for further litigation, will it litigate itself, and, if it litigates itself, will it proceed exclusively?

• In what forum will violations of the statute be adjudicated or resolved—before a court (state or federal) or before an administrative forum or before some joint labor-management process independent of either a court or an administrative agency? Which forum or combination of forums is most conducive to effective worker and worker organization participation?

• If the forum is not judicial, how formal will the process be? How much discovery, and what types of discovery will be allowed?

• What role will individual workers have in the pursuit of redress of violations? Will that role vary dependent on the nature of the violation or the particular violation alleged? What role will worker organizations play in the process?

• Must a worker organization or worker be represented by a lawyer to participate in the enforcement process?

• Will attorneys’ fees be available and for whose attorneys? Will fees of other types be available to reimburse workers or their organizations for participation in the enforcement process?

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• How will actions be initiated—will an administrative agency have independent authority to initiate an action or must any such action be initiated by a private party complaint of some sort?

• How will violations be investigated? Will complaining workers or worker organizations have the ability to compel the production of information?

• Who will control settlement of statutory violations? Will participating workers or worker organizations have veto power over any otherwise agreed upon resolution?

• To what extent is rapidity of results important? • How will complaining workers or worker witnesses or participants in the process be protected

from retaliation? • Should the process be adjudicative only or have a required mediation component?

From my own perspective, a rapid, informal, inexpensive process, with limited discovery and not requiring lawyers, seems most likely to be conducive to effective worker and worker organization participation. A private right of action in federal court does not have those characteristics. Notably, the arbitration system that unions use to enforce the provisions of collective bargaining agreements can be structured to have those characteristics, although certainly in practice labor arbitration in many instances does not meet those criteria and mandatory arbitration “agreements” in the non-union employment law context have given a bad name to arbitration generally.

Initial thoughts (Terri) on expanding qui tam laws to allow workers to being enforcement actions in court on behalf of the state. Expansion of existing qui tam laws would empower workers to enforce their own rights in the absence of government action. This approach would draw upon the model of a centuries-old law allowing people to bring special whistleblower lawsuits (qui tam actions) on the government’s behalf.

The best-known example of this type of law is the False Claims Act. Signed by President Lincoln during the Civil War because suppliers were defrauding the Union Army, this law allows certain whistleblowers to bring lawsuits on behalf of the government in cases of fraud against the government. The government controls the litigation and receives most of the proceeds, with the whistleblower receiving a percentage. Many states also have their own False Claims Acts, although some are limited to Medicaid fraud enforcement.

California’s Private Attorneys General Act (PAGA) also operates in a somewhat similar manner. PAGA authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. It allows workers to recover penalties, but not back wages, and has been held by California’s Supreme Court not to violate the Federal Arbitration Act because PAGA lawsuits are enforcement actions on behalf of the state.

Expanding a qui tam or PAGA model to other states could function as follows: a whistleblower who knows of a workplace violation would bring a case to the relevant government agency. The agency could then reject the claims as invalid, pursue the claims directly, or allow the whistleblower to bring the case on behalf of the government. One advantage of this type of case is that in addition to

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penalties or other monetary redress, the court could order the employer to comply with the law and even require monitoring as well, which typically is not relief that can be obtained through a private lawsuit. This type of new whistleblower law would allow the government to accomplish comprehensive, workplace-wide remedying of patterns and practices of violations, either through its own direct enforcement or through whistleblower lawsuits brought on the government’s behalf.

This approach would not be preempted by federal law, because it would involve not private litigants suing on their own behalf, but rather a state’s action to enforce its worker protection laws.

In New York, a bill known as the EMPIRE Act, supported by such advocacy organizations as Make the Road New York and the Center for Popular Democracy, has been proposed roughly along the lines of this model. A similar model was proposed in Washington, and legislators and advocates in other states, including Vermont and Oregon are also considering similar proposals. This type of law could be considered at the federal level as well. These proposals exist within the current framework of U.S. labor laws in that they focus on wage and hour and discrimination matters (not issues related to organizing or safety and health, for example), but certainly with a clean slate they could be expanded to other areas.

Several constraints of this approach should be noted: (1) these laws require lawyers to bring the cases; they’re generally not the kind of cases that could be done pro se; (2) this approach relies on using courts as they’re currently structured and populated, so to the extent that federal courts and some state courts have judges unsympathetic to workers’ rights, that’s a limitation; (3) this type of law addresses violations after the fact, and their potential for deterrence only results from high monetary awards; and (4) these laws as currently conceptualized do not allow workers and their lawyers to use the full range of tools available to government agencies (such as pre-filing subpoenas).

This model would help build worker power by (1) allowing workers to directly act on behalf of the state in relation to enforcement of their rights and (2) expanding resources available for public enforcement of workplace laws. However, there is a question about whether it is a longterm solution, or better seen as a response to the lack of enforcement resources as well as the immediate (and likely medium-term) problem of forced arbitration depriving workers of their rights.

Group discussion April 5, 2019. When David Lopez and I took up these issues during the April 5, 2019 convening, our initial group settled, after a fair bit of difficulty focusing, on three issues for further discussion: 1) a workers’ rights enforcement operation modelled on the original Legal Services program, where government funding would be provided to local organizations to provide lawyers whose purpose would be to enforce workers’ rights; 2) an informal, low cost dispute resolution forum for workplace matters, which would allow workers and their representative organizations to appear and participate without the necessary involvement of lawyers; and 3) a law modelled on California’s PAGA, where workers would give the state enforcement agency a brief period of time to take up an enforcement matter, but if the agency failed to act, the workers would be authorized to proceed on behalf of themselves, other employees and the state, to seek penalties for violation.

Our second group decided that the third option—the PAGA-like statute—was what we should spend our time on, and so we did. The ultimate details of our recommended PAGA-like statute a) would

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allow the state agency a minimal period of time (33 days) within which to act, b) prior to any litigation starting, a mandatory mediation effort would be required—this is to allow workers or their organizations an opportunity to be fully engaged in the resolution of the dispute, without consigning that resolution to a third party judge, and c) would cover all workplace disputes, not just the limited wage and hour type matters covered by California’s PAGA. A reason given in favor of this type of law was that clothing workers with the mantle of the state would be a way around mandatory arbitration enforced by the Federal Arbitration Act—this rationale raises the question of whether it would just be simpler to amend the FAA to exclude all employment-related disputes, arguably the original intent of 9 U.S.C. § 1, before the exemption for contracts of employment was narrowed by the Supreme Court in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

Due to concerns about the Trump-appointed federal judiciary, the consensus was that these laws should provide state, not federal, causes of action and the majority of the group thought proceeding state-by-state, beginning in the blue states, was the proper implementation strategy. David Lopez made a valiant effort to argue in favor of federal legislation and federal litigation, and tried to get the group to consider whether a federal PAGA-like statute could be married to another hot button issue to gain bi-partisan support, citing the bi-partisan support for the recently successful criminal sentencing reform First Step Act as a model to be emulated. While everyone acknowledged that obtaining bi-partisan support was a worthwhile goal and necessary to get anything federal passed in the current environment, the group’s best efforts did not produce an issue or issues that, if combined with the suggested PAGA-like bill, would likely produce the sought-for bi-partisan support.

In addition to the points raised at the end of Terri’s paper—"This model would help build worker power by (1) allowing workers to directly act on behalf of the state in relation to enforcement of their rights and (2) expanding resources available for public enforcement of workplace laws. However, there is a question about whether it is a longterm solution, or better seen as a response to the lack of enforcement resources as well as the immediate (and likely medium-term) problem of forced arbitration depriving workers of their rights. “—the PAGA-like proposal seems most likely effective in the enforcement of labor standards-like statutes. It is unclear to me how such an individual-or-group-acting-on-behalf-of-the-state private right of action provision would be integrated into a Clean Slate labor law designed, at least in part, to govern the formation and regulation of collective bargaining relationships, a primary function of the labor law we have now.

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Big Idea #5: Create and potentially also fund formalized partnerships between enforcement agencies and worker organizations (sometimes referred to as “co-enforcement”).

This idea involves explicitly and formally including worker organizations in aspects of the enforcement process, including ideally with government funding.

Separate from the issue of funding (which will be discussed below), there are many advantages of close, ongoing, and formalized relationships between government agencies and worker organizations.

Government agencies benefit from these partnerships in various ways, including by gaining knowledge of serious ongoing violations, bridges helping them reach vulnerable worker populations, and assistance in building cases. However, for the purposes of the Clean Slate effort, and our focus on building worker power, this discussion will focus on the benefits to worker organizations, which include:

• The ability to address members’ needs (and support and grow membership) through enlisting government action (often workers may not be ready to join an organization but will go to a government office to complain);

• The ability to help ensure that government resources are deployed in ways that are strategic and meaningful to impacted workers;

• Opportunities for leadership development for workers and worker organization staffers who participate in the partnership activities;

• Access to government officials to alert them to problems or needed changes in legislation, policy, protocols, or enforcement on the ground;

• The potential to have a government enforcement demonstrate wrongdoing of an employer when an organizing campaign discovers, for example, wage and hour or discrimination violations in the course of an organizing campaign;

• Potential support for legislative or regulatory efforts; • The relationship with the government can help the worker organization build credibility among

workers and employers; • The relationship with the government can help create leverage for the worker organization

when dealing with employers or industry representatives; • The relationship with the labor enforcement agency can help lead to connections in other areas

of government. • Provides worker organizations with a formal voice in government enforcement activities; helps

give them a seat at the table; • Increases capacity of worker organizations; • Potentially allows worker organizations and government agencies to identify systemic concerns

at a sectoral level.

Variation A: Government-funded model

The longest-standing example of this is OSHA’s Susan Harwood Training Grant Program, created in 1978, through which OSHA awards grants to organizations “to provide training and education

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programs for employers and workers on the recognition, avoidance, and prevention of safety and health hazards in their workplaces and to inform workers of their rights and employers of their responsibilities” under OSHA.

More recently, several local and state agencies have created formalized and funded partnerships with worker organizations, including unions, worker centers, and community-based organizations. Specifically, San Francisco and Seattle have contracted with worker organizations to conduct outreach and community education regarding municipal labor standards laws, and to refer cases to the office.

Variation B: Formalized relationship without funding

In other instances, government agencies have built strong and formalized partnerships with worker organizations without creating a funded program. The Fair Labor Division in the Massachusetts Attorney General’s office has two sets of regular meetings with worker stakeholders: they have meetings with the Fair Wage Campaign (immigrant worker centers and legal services offices) every 6 to 8 weeks, meetings with their Labor Advisory Council (comprised primarily of labor leaders) every 3-4 months. Participants in these meetings discuss cases, trends, challenges, new approaches, priorities, and other matters. In addition, the office holds monthly wage theft clinics in conjunction with many of these organizations, to meet the needs of workers with cases the AG’s office will not be able to handle. Through these ongoing relationships, worker and community organizations have not only a structured and certain opportunity to have input with the office, but also have relationships and a comfort level that allows them to immediately reach out independently when needed. It should be noted as well that the head of the Fair Labor Division herself comes from community and worker organizations.

Variation C: Private sector/foundation funding for worker organization participation in partnership

The California Department of Industrial Relations (DIR) has engaged in a multi-year pilot community partnership program in which a foundation has funded community organizations to partner with the DIR in enforcement of labor laws. This partnership is the most developed to date: there are teams of DIR employees matched with community partners/worker organizations based on specific problematic industries (janitorial, restaurant, construction, agriculture, domestic workers, home care, etc). As with the Susan Harwood grants and the municipal examples, the worker organizations conduct outreach and community education, refer cases, and generally serve as a bridge to the government enforcement agency. However, this partnership is more extensive in that teams meet regularly to discuss trends in the industry, and strategic approaches that could drive compliance more effectively; also, worker groups provide referrals not just of specific worker complaints but also of industry bad actors. The level of collaboration is much more intensive and the ongoing team-based approach fosters ongoing relationships, as well as joint strategic planning and ongoing communication.

The funded model (whether by government or a foundation) has advantages and disadvantages:

Advantages:

• Provides needed funding for often struggling worker organizations; • Creates a formalized relationship with clear expectations and requirements;

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• Fairness: worker organizations are doing outreach, community education, and referral work that is a critical part of government enforcement, so it’s only fair that they should be paid for it.

• Ensures that the worker organization will be able to devote at least some set amount of resources to its partnership with the government.

• More transparency in terms of the relationship between government and civil society; • More longevity: the relationship is between the government agency and the worker

organization as institutions, and not between individuals working in those entities; therefore, inevitable transitions and turnover will have less of an impact on the institutional relationship.

Potential disadvantages:

• The funding may skew the activities of the worker organizations; instead of focusing on worker organizing, they may focus on finding and referring cases to the government agency. Funding may drive programming instead of community needs driving programming;

• Lack of research demonstrating the impact of funding on helping build worker power/worker organizations or changing enforcement outcomes in terms of employer compliance.

o One agency has nearly half of its budget devoted to community partnerships; is this the right ratio?

Funding specifically by government has several additional potential disadvantages:

• Potentially inhibited ability of worker organizations to publicly criticize or challenge actions by a government agency from which it receives funding;

• Government funding of non-governmental groups for enforcement purposes reduces funding for unionized government employee investigator positions; in other words, does this model involve contracting out a government function to non-unionized non-governmental workers?

• Reliance on politics / government funding to continue partnerships; • From a clean slate perspective, anything is possible, but considering the question based on the

current situation, funded partnerships may not be realistic in many parts of the country, because of political realities or funding limitations.

Funding specifically by foundations raises the concern that private funding of what should be a government function may serve to keep government poor.

A few final thoughts to consider:

Some of the funded partnerships have been more focused on worker centers and low-wage worker organizations rather than labor unions; it is worth considering how this model might work differently for different kinds of worker organizations.

With the exception of California, none of the existing models involve worker organizations in a capacity beyond providing education, outreach, and referrals. How could this model be modified to integrate worker organizations in a more complete and meaningful way?

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Where partnerships are not funded, how can organizations and government entities ensure continuity and ensure that the collaborative work gets done?

The biggest outstanding questions, also noted above, are: to what extent does this kind of partnership with government actually build worker power? Are there measurable or readily describable impacts on worker organizations that participate in such programs?

Two final thoughts resulting from our convening:

1) Several worker advocates raised the question of whether the government should even have a role in trying to build community organizations, or whether they should come from the community itself.

2) One additional powerful reason for initiating such partnerships, separate and apart from workers’ rights, relates to civil engagement. These partnerships provide a very concrete way for people to have a role in government and their communities. This separate lens may be a way to encourage additional support for this idea, to government officials, foundations, and others who may be less moved by a workers’ rights framework.

Selected bibliography

Catherine L. Fisk & Seema N. Patel, California Co-Enforcement Initiatives that Facilitate Worker Organizing, Harv. L. & Pol’y Rev. Online (2017), http://harvardlpr.com/wp-content/uploads/2017/11/Patel-FiskCoEnforcement.pdf

This article fist presents co-enforcement programs at the state and local level in California that aim to engage worker and community groups in enforcing labor standards. Fisk and Patel focus on co-enforcement initiatives by the San Francisco Office of Labor Standards Enforcement (OLSE) and the California Division of Labor Standards Enforcement (DLSE). They conclude that both initiatives facilitated worker organizing, produced increased compliance and enforcement, improved the competency and commitment of enforcement officials, and increased legitimacy of enforcement officials among low-wage worker groups. Janice Fine & Jennifer Gordon, Strengthening Labor Standards Enforcement Through Partnerships with Workers’ Organizations, 38 Pol. & Soc’y 552 (2010) This seminal article makes the case for the importance of involving workers in enforcement. As its abstract explains, “This article identifies four ‘logics’ of detection and enforcement, arguing that there is a mismatch between the enforcement strategies of most federal and state labor inspectorates and the industries in which noncompliance continues to be a problem. In response, the authors propose augmenting labor inspectorates by giving public interest groups like unions and worker centers a formal, ongoing role in enforcement in low-wage sectors.” The article then considers three case studies that show how co-enforcement can work in practice.

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Janice Fine, New Approaches to Enforcing Labor Standards: How Co-enforcement Partnerships between Government and Civil Society are Showing the Way Forward, 2017 U. Chi. Legal Forum 143 (2017) Fine explains that non-compliance with labor standards and health and safety standards is high in certain sectors because economic motives not to comply outweigh any social and normative motives to comply; firms that do want to comply thus face a huge economic disadvantage. Because government enforcement bodies will never have sufficient resources to monitor most workplaces not as much information about conditions as workers, co-enforcement is necessary. The paper offers a literature review, highlights “key design principles” of co-enforcement, and then examines case studies at the federal, state, and local levels. Matthew Amengual & Janice Fine, Co-Enforcing Labor Standards: The Unique Contributions of State and Worker Organizations in Argentina and the United States, 11 Regulation & Governance 129 (2017) This article presents a comparative study of labor inspection and enforcement in Argentina and the United States. It highlights similarities rather than differences between the two contexts to show what co-enforcement can look like in different political and institutional environments. To justify this approach, Amengual and Fine explain, “Given the underdevelopment of the theoretical literature on coproducing labor standards enforcement, we believe that an inductive approach to theory building is more appropriate than sharp testing of hypotheses.” David Madland & Alex Rowell, How State and Local Governments Can Strengthen Worker Power and Raise Wages (Center for American Progress May 2017) This report lays out eight policy recommendations to rebuild worker power. The fourth is most relevant: “Improve enforcement by partnering with worker organizations.” Madland and Rowell explain that that U.S. Department of Labor can only enforce federal wage laws and federal labor protections, and they note that federal financial support for enforcement of state and local laws is diminishing. Even with more resources, they continue, government enforcement would be insufficient. Thus, they recommend co-enforcement strategies. They identify key elements of successful co-enforcement: strong government leadership, financial support for worker and community organizations, incentives to bring enforcement lawsuits, fees on violators, and improved access to information.

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Big Idea #6: Create a unitary government agency that enforces all workplace laws, instead of our current fragmented system

This idea involves creating one unitary agency to enforce all workplace laws, in place of our current system.

In the U.S. system of workplace rights enforcement, there are a multitude of agencies that enforce workers’ various rights. On the federal level, there is the NLRB (for union/organizing issues), EEOC (anti-discrimination), the USDOL (wage and hour, prevailing wage, family and medical leave, safety and health, employee benefits security, office of federal contract compliance programs), and the Internal Revenue Service (employee tax withholding) in addition to agencies handling more narrow issues, like the office of special counsel for immigration-related unfair employment practices.

States also have a multitude of agencies responsible for enforcing laws governing the workplace, including human rights/civil rights agencies (workplace discrimination), labor departments (wage and hour, prevailing wage), workers’ compensation agencies, departments of taxation or revenue, unemployment insurance administrators, sometimes occupational safety and health, and others.

These various agencies generally operate independently, and with little coordination. In recent years, there have been positive developments, such as MOUs between the US Department of Labor and several dozen states to combat misclassification, or multi-agency task forces cross training and breaking down silos of various agencies within the states. However, generally enforcement agencies at the federal and state levels do not coordinate and each agency is responsible for enforcement of its own law(s), with its own operations, including investigation procedures, statutes of limitations, organizational charts, internal cultures, remedies, etc.

This miscellany of agencies is disadvantageous for enforcement and is disempowering to workers and worker organizations seeking to enforce various rights. As an initial matter, the structure is extremely inefficient and wasteful. When a given agency conducts an intervention in the workplace, that agency typically only looks into and resolves its particular issue, leaving all other potential violations unexamined and unremedied. Even if the agency is issue spotting for other types of violations, the most that typically occurs is a referral to another agency, leading to another investigation, audit, or inspection. This is inefficient, because each type of violation necessitates a whole other investigation and process. It would be more efficient for a given government agency, once it is intervening in a given workplace, to conduct a holistic review of the employer’s compliance with all of the applicable workplace laws. (Note that this would require a higher level of training and skills for agency staff). In addition, the current system is ineffective, because it so often leaves violations untouched. The multiple-agency system is also confusing to workers, who already face significant barriers to reporting violations and seeking redress, and must also navigate a number of different offices, often being passed along from agency to agency to have issues addressed in a piecemeal fashion. And worker advocates and organizations also must expend considerable resources learning about a multitude of agencies and enforcement regimes, developing relationships and familiarity with each.

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Some other countries take a very different approach to enforcement: instead of having this variety of agencies, they have a unified inspectorate. That is, wage, hour, health & safety, discrimination, and other labor regulation issues are all handled within a single agency. In these countries, including France, Spain and several Latin American countries, there are unified labor inspectorates.11 Unlike in the U.S., where inspectors are specialists in a particular law, inspectors function as generalists and can address the full range of potential violations at a firm. This has the obvious salutary effect of avoiding the need for multiple inspections by different agencies, and the inspectors have the ability to become more familiar with a firm or a region, thereby potentially anticipating issues and understanding very well which employers may be the ‘bad actors.’ This leads to efficiency and increases the effectiveness of each individual inspector by creating a knowledge base that is simply unavailable to inspectors assigned to a single law. Multiple inspectors do not have to visit the same enterprise. Workers in the region or the firm may also become familiar with an inspector or inspectors who are likely to be repeat visitors to a worksite. As a result, the ability of workers to bring concerns to the inspectorate likely increases. If there is a single inspectorate to which workers can voice concerns, then their ability to know where to go and how do this is enhanced (e.g. one poster, rather than multitudes of posters for each agency). A unified inspectorate creates a pathway for interaction that is more effective for workers; workers can more easily understand the pathway and therefore utilize it in more effective ways, and workers together, or their organizations, can make this even more effective

There is, of course, also a danger in consolidated inspectorates: if investigators or inspectors are assigned to a particular firm or small region, they may be more subject to pressures from employers or may be more likely to be “flexible” (a characteristic discussed in Piori and Schrank, but often seen as a positive). Assignment to individual firms further increases the possibilities for corruption and collusion rise. An issue to consider within this approach is that if inspectors are given discretion and become truly familiar with individual firms (and individual firms’ managers), how would this discretion be appropriately managed? To provide one possible solution, from within the current U.S. system, mine inspectors in the Mine Safety and Health Administration are rotated within a region specifically to avoid corruption.

Additional potential downsides to a unified inspectorate include the vulnerability of such a system to political changes; in the current system, an ineffective administration or one that is overly cautious or overly accommodating to business can be limited to a particular agency, while other agencies remain more effective or aggressive. (To put this in colloquial terms: all of the enforcement eggs would be in one basket). Also, a unified inspectorate could potentially cause delays in resolving particular workers’ issues, as each complaint would lead to a holistic review rather than resolution of the worker’s particular complaint.

11 This is well described in Piori and Schrank, Root-Cause Regulations: Protecting Work and Workers in the Twenty-First Century, Harvard University Press, 2018.

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Big Idea #7: Create a formalized role and formalized standing for worker organizations at each and every possible stage within a government enforcement regime. Each enforcement regime has a set of rules about who can file a claim, who can be present during a workplace on-site inspection, who has the power to appear in an administrative hearing, who has standing in court, and other such matters. This big idea would involve examining any given enforcement regime and creating a formal role and organizational standing for worker advocates or organizations at each and every possible stage within enforcement. Worker organizations would be able to submit claims on behalf of workers or on their own behalf; they could be present during on-site workplace inspections as is the case with OSHA or MSHA investigations. They could bring a case as co-counsel along with the government agency, as may occur with the EEOC. This big idea is not as well developed as our other big ideas, and was not discussed at the convening, but we will continue to consider it. Selected bibliography

Does Unionization Strengthen Regulatory Enforcement? An Empirical Study of the Mine Safety and Health Administration Alison Morantz, 14 N.Y.U. J. Legis. & Pub. Pol'y 697, 698–99 (2011) “MSHA’s enforcement activities vary significantly across unionized and non-unionized underground coal mines” — in other words, effective MSHA enforcement seems to go hand-in-hand with worker organizing. Coal Mine Safety: Do Unions Make a Difference? Alison Morantz, Stanford Law Sch. Law & Econ. Olin Paper Series, Paper No. 413 1, 10 (2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1846700 An analysis of MSHA’s historical database from 1993-2010 has found that “unionization predicts a substantial and significant decline in traumatic injuries and fatalities, the two measures that I argue are the least prone to reporting bias,” and that unionization also predicts higher total and nontraumatic injuries, suggesting that injury workers in non-unionized mines may be underreporting legitimate injuries (for example, for fear of retaliation). Does Unionization Strengthen Regulatory Enforcement? An Empirical Study of the Mine Safety and Health Administration Alison Morantz, 14 N.Y.U. J. Legis. & Pub. Pol'y 697, 700 (2011) A 2012 paper by Alison examined first, whether the “frequency, distribution, intensity, and/or scope of MSHA inspections differ significantly across union and non-union mines,” and second, whether “conventional metrics of regulatory enforcement stringency and compliance… vary by union status.” She found that “MSHA's regulatory enforcement behavior varies significantly by union status. In particular, unionization predicts statistically significant and robust increases in regular inspection hours

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per mine-quarter, total inspection hours per regular inspection, and the proportion of total inspection hours spent onsite.

Enforcing OSHA: The Role of Labor Unions David Weil, 30 INDUS. REL. 20 (1991) Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss David I. Levine, Michael W. Toffel, Matthew S. Johnson, Science, New Series, Vol. 336, No. 6083 (18 May 2012), pp. 907-911 [available on jstor] Random safety inspections do indeed improve safety without leading to burdensome expense or job loss. Some scientists say the randomized, controlled study design could be a model for testing whether proposed future regulations are likely to be effective. The Link Between Workforce Health and Safety and the Health of the Bottom Line: Tracking Market Performance of Companies That Nurture a “Culture of Health” Raymond Fabius et al., 55 J. OCCUPATIONAL HEALTH&ENVTL. MED. 993 (2013) Finding companies with proven health, safety, and environmental programs outperformed the market.

Research Draft prepared for Clean Slate Project - Not for Circulation, Citation, or Attribution

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