State attorneys general taking on protection of workers’ rights
State attorneys general (AGs) have been getting more and more involved in defending workers’ rights, including bringing wage theft cases, suing companies such as Uber and Lyft for misclassification, and fighting noncompete and no-poach agreements.
State AGs’ evolving labor-enforcement role was the topic of the “State Attorneys General as Protectors of Workers’ Rights” webinar hosted by the Economic Policy Institute and the Harvard Law School Labor and Worklife Program on December 3, 2020, which included insights from bureau, division, and section chiefs who lead labor rights work in their state attorneys general offices.
The panelists talked about some of their cases and shared thoughts about how state AGs select cases, how they decide whether to proceed civilly or with a criminal prosecution, and how they’ve worked, sometimes behind the scenes, to safeguard workplace safety and health during the pandemic. The webinar followed up on an August report on this topic issued by EPI and the Harvard Labor and Worklife Program.
Here is a Q&A based on some of the follow-up questions asked during the webinar. They delve into everything from setting up a labor unit in the AG’s office to AGs’ authority to address workplace safety matters.
Questions about the role and activities of state AG office labor units
Regarding case selection: What about AGs deciding “not to get involved”? That seems a productive question that slightly adjusts the “How do you ‘get cases’?” question.
Several of the panelists discussed how they select cases, which are primarily based on impact litigation criteria: Offices try to focus on cases with a pattern or practice that violates the law, and in which handling the case can help to bring broader change in an industry or regarding a certain practice. Offices also consider the number of workers involved, egregiousness of the violations, and strength of the evidence (including documentary evidence as well as worker witnesses), among other things. What cases they decide not to get involved in is driven by these same considerations. A case involving a few workers, working for a small employer, with de minimus violations and weak evidence is likely to be unappealing.
Do you do outreach to labor unions? Do you reach out to those who are not represented by unions?
A number of state AGs engaged in this work do considerable outreach to unions, worker centers, worker advocacy groups, community-based organizations, and others, as detailed in the August report. If your state AG is not engaging with worker organizations, it’s a good idea to reach out and begin the conversation.
Do AG offices get involved in enforcing Families First Coronavirus Response Act expanded leave benefits?
AG office jurisdiction varies considerably: Some may have authority to enforce it, others may not. Regardless, offices can always do outreach and know-your-rights education about these rights, as the D.C. AG’s office has done; such outreach is important given the general public’s lack of knowledge about these laws.
How does preemption under the National Labor Relations Act (NLRA) shape your work, especially where there could be disagreement about whether violations are within the scope of the NLRA?
There is broad preemption of state action by the NLRA. However, states retain their police powers and are not preempted from enforcing general laws unrelated to collective bargaining. So, for example, if restaurant workers organizing a union also file a complaint about subminimum wages, and they are subsequently discharged in an arguably retaliatory termination, the NLRA would not preempt a state AG’s office from taking action (investigate and, if warranted, sue) to address the retaliation because it stems, at least in part, from the subminimum wage complaint.
Is there an AG national organization?
The National Association of Attorneys General is a nonpartisan national organization of state AGs. Another resource is the website www.stateag.org. In addition, James Tierney, former attorney general of Maine and a lecturer at Harvard Law School, has developed an open source casebook which can be consulted for more detailed background on attorneys general.
I work in a state that has a state Department of Labor (DOL) opposed to worker rights but an AG’s office that may be more sympathetic. Is the ability for state AGs to handle labor cases just a question of state law typically?
Yes and no. Ideally, state AGs would have direct and explicit jurisdiction to enforce state workplace laws. Some AG offices have gotten this authority through legislation in recent years, including D.C., Illinois, and Minnesota. But other offices have brought labor cases using more general authority to bring cases to protect the people of their jurisdictions. The California AG’s office has used an unfair competition law as the basis for jurisdiction to enforce these laws, and the New York AG’s office has long brought labor cases using a law granting the AG authority to address repeat or persistent fraud or illegality in the running of a business. Prior to its grant of jurisdiction, the Illinois AG office used a creative combination of approaches, including bringing cases under parens patriae authority. Washington State’s AG brought a noncompete case under an anti-trust theory.
But even without any explicit jurisdiction, state AG offices can use a range of other tools to protect workers: gathering information and issuing reports, proposing legislation, joining multistate actions, writing amicus briefs, holding town halls, referring cases to other agencies, conducting outreach and know-your-rights presentations, and more. In addition, state AG offices have the important role of representing the state Department of Labor (or its equivalent) in court, and in states with worker-friendly labor departments, the AG office may be able to collaborate closely with that agency in aggressively pursuing employers with egregious violations. Finally, some state AG offices have criminal jurisdiction and may be able to pursue wage theft, payroll fraud, and other workplace violations through criminal prosecution, if the facts warrant this approach.
Do you have any info about red states’ AGs?
As profiled in the report, some Republican attorneys general have taken action to protect workers. For example, in 2020, West Virginia Attorney General Patrick Morrisey helped secure over $1 million in owed paid time off and other benefits for workers whose employer, a hospital, had abruptly closed; the settlements covered a range of workers including certified nurse assistants, support nurses, support staff, and cafeteria and maintenance workers. In 2019, Montana Attorney General Tim Fox obtained a guilty plea from the owner of a construction company for failing to pay workers’ compensation insurance, among other things. And at the start of the pandemic, Arizona Attorney General Mark Brnovich issued a press release informing workers of their rights under the state’s paid sick leave law.
How are AGs acting to protect educators and others who must work in school settings during the pandemic? The desire to educate kids and limit remote school is strong, but the risks to these front-line workers is increasingly serious.
The Vermont AG’s office issued guidance regarding reasonable accommodations during the pandemic for schools, school districts, educators, and support staff. In addition, the Illinois AG’s office sued to enforce the state’s mask mandate in a school context (Motion for Temporary Restraining Order and memorandum from case).
Questions about starting labor units in state AG offices
How and who generally sets up the labor units in the AG’s office? Is that something decided by the AG, or by statute, or is that a legislative or governor-based decision? In other words, how does one encourage a state to develop the position and the office? And what was the state labor department’s position?
This is generally something decided by the AG. In offices with labor units that have started since 2015, the AGs decided that workers’ rights would be a priority within their offices. In some cases, this meant moving positions from other bureaus when there was turnover or attrition. For example, if a consumer division had 25 lawyers, and one departed from the office, the AG might use that position to start a labor unit, leaving the consumer division with 24 lawyers (96% of its prior staffing) and create a whole new labor unit starting with just one lawyer. In fact, in several offices, labor units started with only one attorney and later grew. In addition, as noted above, state legislatures recently granted AG offices jurisdiction on these matters in D.C. (2017), Illinois (2019), and Minnesota (2019); the legislation in Illinois also established the AG’s Workplace Rights Bureau by statute, so that its continued existence would no longer be a matter of discretion of the officeholder.
Regarding the state labor department, in state AG offices with dedicated labor units, there are generally collaborative and synergistic relationships. Labor departments have welcomed the additional and complementary involvement of the AG’s office in the shared mission of protecting workers. Of course, this is not a foregone conclusion; one could imagine a situation in which ideology or concerns about turf might lead to a less collaborative approach.
Are progressive worker protection units structured so that they can survive changes in AGs and shifting priorities? If not, what could the public do to ensure survival and effectiveness?
As a matter of practice, AG offices often retain the same general bureaus and structure even when there are changes in administrations. This is part of the value of institutionalizing the work in a dedicated bureau, division, or unit. One approach to ensuring the continuation of such units would be to enshrine its existence in statute, as occurred in Illinois.
Several participants asked what state AGs are doing or have done about misclassification of workers as independent contractors instead of as employees, a practice that results in a range of workplace law violations.
State AGs have been involved in addressing misclassification in various ways. As discussed in the webinar, the Massachusetts and California AGs both sued Uber and Lyft for misclassification (although California’s efforts for injunctive relief are impacted by the passage of Proposition 22 in that state). The Massachusetts AG also reached settlements with two placement agencies that required reclassification of workers as employees (they involved staff placed in dental offices and schools). Also, state AGs often deal with misclassification of workers in their role representing state agencies; for example, the New York AG’s office represented the state labor department in a case in which the state’s highest court upheld a determination that a Postmates worker was an employee, not an independent contractor, for the purposes of unemployment insurance. The New York AG also recently filed a brief urging the state’s appellate court to uphold a similar determination regarding Uber drivers.
Have AGs used their criminal prosecution authority to address workplace safety and health violations or workers’ deaths?
Some state AGs have used criminal prosecution authority extensively to pursue employers, but it has generally focused on cases of wage theft, failure to pay unemployment taxes, and workers’ compensation fraud. However, the Maine AG’s office recently charged a roofing company in a workplace fatality case, and the New York AG’s office brought child labor prosecutions in the case of a teenage restaurant worker whose arm was severed and a 14-year-old killed while operating heavy equipment on a farm.
There are, however, numerous examples of district attorney offices (or their equivalents), who often have broader prosecutorial authority than AGs, that have brought charges against employers in relation to workplace fatalities, including in Colorado, Massachusetts, New York, and elsewhere.
There were a number of questions about various policy issues: prison labor, right-to-work laws, the right to refuse hazardous work, corporate immunity from COVID-19-related litigation, imbalanced bargaining power between workers and employers, and the national impact of California’s Proposition 22, among others.
The labor chiefs who were panelists on the webinar surely have personal opinions on some of these topics, as many of us do, but their role is not primarily policymaking; it’s enforcing the laws that are on the books. State AGs do have the ability to affect policy in various ways: They have proposed state legislation, testified in Congress, written reports, authored op-eds, issued opinion letters, and filed amicus briefs—and, of course, their affirmative litigation, such as cases against the federal government, can lead and has led to policy changes. However, the lawyers overseeing enforcement do not generally have a formal role in policymaking in the way lawyers in nonprofits, think tanks, or legislative offices might. (They also would typically be unlikely to speak publicly about their policy opinions, since there is usually a chain of command in government agencies that would require approval before offering such responses.)
Finally, looking to the future, some participants wondered about state AGs’ worker protection role in light of the upcoming Biden administration: Will the AGs’ role or priorities change?
Offices with labor units will likely expend fewer resources opposing proposed federal rules or suing to block enacted ones. Given the dire situation of workers in the U.S., however, this is clearly an all-hands-on-deck moment, with ample reasons for state AGs to continue their active and growing engagement in this work.
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