Labor's Wage War
Ruckelshaus, Catherine K., Fordham Urban Law Journal
Almost every growing sector in the bottom half of our economy--health care, child care, retail, building services, construction, and hospitality--is plagued by penurious employers who drag down working conditions for everyone. Common schemes emerge in jobs with sweatshop conditions: employers hide behind subcontractors, call their workers "independent contractors" not covered by workplace laws, and hire immigrant workers who are subjected to substandard conditions. Firms must adopt similar practices to stay competitive. Workers in many of these jobs make the minimum wage or less. Minimum wage for a full-time worker today translates into an annual income of only $12,168. Consequently, many important jobs cannot bring people out of poverty and workers across the socio-economic spectrum are impacted.
Far from ramping up enforcement to combat these unlawful practices, federal and state public agencies have reduced staffing and enforcement efforts. Private enforcement is hampered by rules against class actions under the federal minimum wage law. The labor movement has stepped into this void, partnering with community organizations and law-abiding employers, creating relationships with state departments of labor and attorneys general, and supporting private labor standards enforcement models to shore up the wage floor for all workers.
Part I of this Article describes the trends that result in bad jobs, including the U.S. Department of Labor's inaction, employer dodges including subcontracting and independent contractor misclassification, and the barriers workers face to protesting their unpaid and underpaid wages. Part II showcases some of the more exciting of these new labor standards enforcement models, including: (1) labor and management-funded "Taft-Hartley Funds" such as the Maintenance Cooperation Trust Fund in California and the national network of Foundations for Fair Contracting, which use union and employer monies to police wage and hour violators; (2) the American Federation of Labor and Congress of Industrial Organizations' ("AFL-CIO")' national worker center partnership, creating new collaborations with community organizing groups in the day labor and faith-based communities; (3) the Service Employees International Union's wage and hour project, supporting private and public agency enforcement of fair pay rights for janitors, security guards, and home health-care workers across the country; and (4) the New York Civic Participation Project, a union-community collaboration that promotes worker justice and civic empowerment for new immigrants. (1) Part III briefly assesses these new models and suggests possible directions for continued success.
I. TODAY'S TRENDS THAT MAINTAIN BAD JOBS
As we lose manufacturing jobs to overseas markets, the jobs left behind--health care, child care, retail, building services, construction, and hospitality--are not good jobs. In addition to providing paltry benefits, if any, employers in these sectors routinely violate bedrock employment rights like the right to be paid fully for work and the right to a safe workplace. (2) Employers in these industries maneuver to cut costs at any price: they hide behind subcontractors, call their workers "independent contractors" not covered by workplace laws, and hire immigrant workers who are vulnerable to exploitation. (3) As if that were not enough, workers face barriers to enforcing their basic job rights, including antiquated rules for bringing class actions in private litigation, and fear of reprisals that go unchecked when workers complain.
A. The United States Department of Labor ("DOL") Is Not Enforcing Its Laws, and Interprets Its Role Narrowly
Public enforcement of the Fair Labor Standards Act ("FLSA") and other baseline workplace standards is down, with some notable exceptions; federal and state agencies charged with enforcing baseline wage and hour laws are not having an impact. …