Report * By Terri Gerstein and Marni von Wilpert * May 7, 2018
Summary
State attorneys general can be key allies in protecting workers’ rights. While there are variations in the structure, resources, and jurisdiction of state attorney general offices, these offices often have a range of powers that can enable them to play a key role in advancing and defending workplace protections by ensuring that employers comply with the law. This report describes some of the ways state attorneys general have been involved in protecting workers’ rights.
Introduction: Broader state enforcement is needed to enforce workers’ rights laws
Working people in America are being shortchanged: They are working harder, but inequality is rising and wages for all but the highest-paid workers are failing to keep up with economywide productivity growth (Gould 2018). Even worse, many workers are not being paid what they are owed by their employers. The failure to enforce workers’ rights laws has resulted in billions of dollars in wages being stolen from workers’ paychecks (Levine 2018; McNicholas, Mokhiber, and Chaikof 2017). For example, in the 10 most populous states in the country, each year 2.4 million workers covered by state or federal minimum wage laws report being paid less than the applicable minimum wage in their state-approximately 17 percent of the eligible low-wage workforce.
The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL)-the federal agency responsible for enforcing minimum wage and overtime laws-has been stretched increasingly thin. The number of payroll jobs in the U.S. is more than three times as large as it was in the 1940s-146.6 million in 2017 compared with 45.0 million in 1948-but the number of wage and hour investigators at WHD has remained essentially the same (BLS various years). In 1948, WHD employed one investigator for every 22,600 covered workers; today, WHD has only one per every 135,000 workers (Cooper and Kroeger 2017). As a result, the agency’s ability to effectively police violations of labor law has suffered: from 1980 to 2015, the number of wage and hour violation cases WHD investigated decreased by 63 percent (Cooper and Kroeger 2017).
Moreover, the decline in union rates has put more workers at risk of labor law violations. Workers not covered by unions-those who are neither in a union nor covered by a union contract-are almost twice as likely (4.4 percent) to experience minimum wage violations as those in a union or covered by a union contract (2.3 percent) (Cooper and Kroeger 2017). And unions continue to be under attack: Trump’s budget blueprint calls for funding cuts to the National Labor Relations Board (NLRB), the federal agency charged with upholding private-sector workers’ rights to organize and join unions (Opfer 2018).
These staffing shortages and funding cuts show that the Trump administration is not making enforcement of our nation’s labor laws a priority. To protect workers’ rights to fair pay and fair treatment on the job, funding and resources for federal labor and employment law enforcement agencies need to increase dramatically. In addition, state governments can and should take up the fight to protect workers’ basic rights on the job. State labor departments are usually the primary enforcer of state labor laws, but there are other governmental entities that can and do engage in worker protection activities, including state attorney general offices.
This report explores the ability of state attorneys general to take up enforcement of our labor laws and protection of workers’ rights. By examining enforcement actions among a number of states, this report highlights the various ways state attorneys general exercise jurisdiction to protect workers and enforce labor laws.