Workers were facing health risks in the workplace unprecedented before March 2020. Many essential workers were becoming sick with COVID on the job.1 On the economic side, millions had lost their jobs.2 Millions more were forced to quit their jobs to care for children who were home from school or day care or to protect their health or the health of vulnerable family members.

Of the 22 million jobs lost during the pandemic recession, not even 60% had been restored by January 2021: Economywide employment was still 9.5 million jobs below the pre-pandemic peak. Worse, progress toward a jobs recovery had been faltering in recent months. Between August and November 2020, the number of new jobs created declined steadily each month. In December 2020, the economy lost a significant number of jobs.

In short, recovery had not just stalled, it had begun reversing. Further, workers were contending with a long-broken system of labor and employment laws made significantly worse by the Trump administration’s concerted and unrelenting attack on working people.

President Biden promised to address this situation and to be the most pro-union president in American history. How has he done so far? With midterms approaching, we review the Biden administration’s record of pro-worker actions over the last 18 months.

Advancing equity, diversity, and inclusion in the workforce

Advanced equity and racial justice through the federal government

On January 20, 2021, President Biden issued an executive order (EO) titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.”3 The EO directed federal agencies and departments to identify and redress inequities in their programs that serve as barriers to equal opportunity.

Specifically, it directed the head of each agency—in consultation with the Director of the Office of Management and Budget—to conduct an equity assessment for their agency. Each agency’s findings were to be presented in a report within 200 days of the date of the order, along with plans for allocating federal resources to advance fairness and opportunity. The executive order allowed many agencies to make progress in building equity and racial justice into federal programs.

For example, within the first year after the order was issued, the Treasury Department appointed a director of racial equity, awarded $738 million to minority-owned businesses (without regard to size), and elevated the role of community-based financial institutions through the Freedman’s Bank Forum.4

The Department of Housing and Urban Development appointed a senior advisor for racial equity, pledged to administer and enforce the Fair Housing Act to prohibit discrimination based on sexual orientation and gender identity, and initiated the Interagency Task Force on Property Appraisal and Valuation Equity (PAVE) to address barriers to equitable home appraisals faced by families of color and other underserved communities.5

In total, over 90 government agencies mobilized in response to the executive order and advanced strategic action plans to expand equity.6

Empowered workers who have been discriminated against by reversing the Trump EEOC’s conciliation rule

On June 24, 2021, President Biden signed a resolution protecting the existing process for workers who have filed a discrimination case with the Equal Employment Opportunity Commission (EEOC).7 The resolution rescinded a Trump-era EEOC regulation that rigidly defined the required steps of the “conciliation” process.

The conciliation process occurs once the EEOC determines “there is reasonable cause to believe discrimination has occurred” and is an opportunity for all parties to agree to a solution without a lawsuit.8 Historically, the EEOC has had flexibility in how it approached the conciliation process according to the specifics of the case, including the option of preserving the anonymity of complainants and redacting sensitive information.

The rigid requirements imposed on the EEOC by the Trump regulation would have encouraged employers to focus on whether the regulation’s terms were met by the EEOC—in an attempt to avoid litigation on a technicality—rather than on responding to the allegations of bias. This would undermine the power of the EEOC in its investigative obligations. Employees would also be deterred from reporting discrimination given the obstacles to obtaining justice. In addition, because the rule would have required the EEOC to provide each employer with sensitive information about the complainant and the case during conciliation, workers seeking justice could find themselves in an even more vulnerable position with respect to their employers.

Expanded equity, diversity, and inclusion training in the federal workforce, reversing a Trump ban on EDI training

President Biden directed federal agencies to expand the availability of equity, diversity, and inclusion (EDI) training for their workforce. EDI training supports employees in building the skills to promote respectful and inclusive workplaces with increased understanding of implicit and unconscious bias.9 The directive was part of President Biden’s executive order “Advancing Diversity, Equity, Inclusion, and Accessibility in the Federal Government.” Biden’s EO simultaneously revokes the misleadingly named executive order “Combating Race and Sex Stereotyping” issued by former President Trump. The Trump EO had prohibited federal contractors and subcontractors from providing certain workplace diversity training and programs.10

Has proposed to restore the original religious exemption rule for hiring, rescinding a problematic rule that left the door open for discrimination

Under the Biden Department of Labor (DOL), the Office of Federal Contract Compliance Programs (OFCCP) has proposed to rescind a problematic Trump administration rule that left the door open for discrimination in hiring.

The Trump rule was a revision of a long-standing rule that permits qualifying federal contractors that are religious organizations to hire individuals who share their religious beliefs.11 The Trump rule vastly expanded who can use the religious exemption, even “permit[ting] a contractor whose purpose and/or character is not primarily religious to qualify for” the exemption.12 And, in an unprecedented move, the rule even allowed for-profit corporations to use the religious exemption. The revised rule left the door open for employers to misuse the religious exemption to discriminate in hiring.13

The OFCCP proposal under the Biden DOL would restore the religious exemption to its original goal and intent, preserving religious freedom while protecting workers from discrimination.

Allowing agencies to govern effectively

Revoked Trump-era anti-regulation executive orders 

One of President Biden’s first actions after taking office was issuing executive orders that revoked several anti-regulation actions taken by the Trump administration.14 Regulations are often misunderstood by the general public to be simply burdensome rules that interfere with “getting things done.” Those who push an anti-regulatory agenda have a vested interest in propagating that myth. In fact, regulations instruct how to do something—they include requirements to put a law into action.

Not only does regulation help make the economy fairer, the lack of regulation and the associated consequences can be disastrous. As EPI’s Heidi Shierholz and Celine McNicholas point out, “the lack of sensible regulations can lead to economic catastrophe and the loss of millions of jobs,” as happened in the financial crisis of 2008–2009.15

Appointing pro-worker leaders

Nominations to key administrative and judicial posts are an important indicator of a new president’s priorities. In contrast to President Trump’s pro-corporate, anti-worker appointments, President Biden has nominated a slate of individuals that have put forward policies advancing workers’ rights.

Appointed a union member to head the Department of Labor

In March 2021, Marty Walsh was confirmed as the Secretary of Labor, marking the first time in decades a union member has held the position.16 As the former mayor of Boston, Marty Walsh helped enact policies that support working people, including a $15 an hour minimum wage and paid sick leave.17

In July 2021, Julie Su was confirmed as Deputy Secretary of Labor.18 As the former secretary of the California Labor and Workforce Development Agency, Su oversaw the agency that coordinates California’s workforce programs and enforces state labor laws.19

With Secretary Walsh and Deputy Secretary Su at the helm, the Department of Labor has worked toward reversing the harmful actions put forward by the Trump administration while also promulgating new rules that set higher standards for workers. (These actions are described in more detail throughout this report.)

Appointed lawyers with extensive union experience to the National Labor Relations Board

In July 2021, Gwynne Wilcox and David Prouty were confirmed as Board Members of the National Labor Relations Board (NLRB, the Board). Jennifer Abruzzo was confirmed as the agency’s General Counsel.20 Ms. Wilcox and Mr. Prouty spent much of their careers representing unions and individual employees.21 Prior to being confirmed General Counsel, Ms. Abruzzo spent over two decades at the NLRB in various capacities, giving her unparalleled knowledge of the agency’s functions.22

These appointments stand in stark contrast to President Trump’s management- and corporate-sided lawyer nominations.23 Under the Biden administration, the Board and General Counsel Abruzzo have worked toward restoring the agency to its original purpose of promoting and encouraging the practice of collective bargaining—undoing damage done under the Trump administration.24 (For specifics, see the section “Protecting the right to organize” in this report.)

Nominated a Supreme Court justice with a history of protecting workers’ rights

In April 2022, Ketanji Brown Jackson was confirmed as an associate justice on the U.S. Supreme Court, marking the first time a Black woman has been named a Supreme Court justice. Justice Brown Jackson has a history of making decisions supporting workers’ rights and collective bargaining, including invalidating a string of executive orders issued by President Trump that limited federal employees’ right to bargain collectively.25

Demonstrated a commitment to racial economic justice with key Fed nominations

In May 2022, Dr. Lisa D. Cook and Dr. Philip Jefferson were confirmed to serve as members of the Federal Reserve Board of Governors.26 Dr. Cook’s appointment marks the first time a Black woman has sat on the Board in its 108-year history. Further, Dr. Cook and Dr. Jefferson’s appointments mark the first time two Black governors will serve simultaneously. As EPI’s Adewale Maye writes, these appointments acknowledge the critical importance of Black economists and their work in achieving racial economic justice and promoting policies that ensure broadly shared prosperity and opportunity for all workers.27

Bringing jobs and profits home

Issued an order increasing federal purchases of American-made content 

On January 25, 2021, President Biden signed EO 14005, implementing a government program to direct the use of taxpayer dollars to U.S. manufacturing.28 This executive order bolsters the American manufacturing industry, increasing domestic competitiveness and rebalancing U.S. trade.29 Increased investments in American-made goods boosts domestic supply and creates new jobs and opportunities for American workers, especially targeting the middle class.30 The Made in America Executive Order also strengthens domestic supply chains, ensuring access to critical products during times of crisis.

Supported Special Drawing Rights’ issuance by the International Monetary Fund, boosting U.S. exports

In August 2021, the Biden administration voted to authorize an issuance of $650 billion in special drawing rights (SDRs) by the International Monetary Fund. SDRs are a reserve currency the IMF issues to low- and middle-income countries. By releasing more SDRs, the IMF helped economies that had been battered by the COVID-19 economic shock to access currencies they needed to finance crucial imports. For the U.S., the SDRs represented no economic obligation, but they did boost U.S. exports by supporting the economies of low- and middle-income trading partners.31 The Trump administration had previously blocked an SDR issuance earlier in the COVID-19 pandemic, depriving low- and middle-income countries of needed resources and suppressing U.S. exports.

Led multinational effort to institute a global minimum corporate tax rate

For decades, flawed features of the U.S. corporate tax code provided incentives for U.S. multinational corporations to use other countries as tax havens—through creative accounting—in order to evade their fair share of taxes in the U.S. The Tax Cuts and Jobs Act (TCJA), signed into law by former President Trump, provided further incentives to move production facilities and jobs—not just accounting profits—offshore.32

Under the Biden administration, the Treasury Department has led a multinational effort to institute a global minimum tax on offshore earnings of multinational companies.33 Currently, over 130 countries have agreed to the framework. If instituted, it would sharply curtail the ability of companies to use abusive tax havens, and it would pare back the tax advantages of moving jobs and production offshore.

Investing in critical infrastructure and services while creating and supporting good jobs

Enacted historic investments in our nation’s infrastructure

In November 2021, President Biden signed the Infrastructure Investment and Jobs Act (IIJA), which invests $1.2 trillion into our nation’s infrastructure. The IIJA expands investments in surface transportation, public transit and rail, water, and broadband internet infrastructure, and makes new investments in renewable energy and electric vehicles.34 The law is estimated to support more than 770,000 jobs over the next 10 years.35

Enacted major reform to the U.S. Postal Service

In April 2022, President Biden signed the Postal Service Reform Act into law. The Act had passed Congress with bipartisan support. This historic legislation is the first major reform to the Postal Service in more than a decade.36

The Postal Service is a critical resource for Americans: Not only does it provide secure delivery of everything from mail ballots to lifesaving medications, but it also provide good middle class jobs.37 The Postal Service Reform Act will move the Postal Service toward greater financial stability by undoing the burdensome pre-funding mandate for retiree health benefits and enacting Medicare integration to maximize postal service employees’ participation in the program.38 It further enshrines into law six-day mail delivery—which has long been under threat39—and institutes strong reporting and transparency guidelines.40

Enacted historic investments to fight climate change and reduce health care costs

In August 2022, President Biden signed the $750 billion Inflation Reduction Act, a comprehensive bill that will reduce energy, health care, and prescription drug costs for American families.41 The historic legislation invests $370 billion over the next 10 years for clean energy and climate programs, representing the United States’s single biggest step to date in tackling the climate crisis.42 The legislation also helps reduce health care costs for Americans by allowing Medicare to negotiate lower prices with pharmaceutical companies as well as reducing Medicare out-of-pocket costs for drugs.43

Protecting the rights of immigrant workers

Ended mass immigration raids at worksites

The Biden administration took a sharp turn away from the harmful policy of worksite raids—which had been in full force during the Trump administration—with Policy Statement 065-06, issued in October 2021, titled “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual.”44

The Trump administration had pushed a bigoted and xenophobic narrative that pitted immigrants against native-born U.S. workers under the false premise that the economy is a zero-sum game with a fixed number of jobs. That led to foolish and cruel policies under the previous administration—perhaps none worse than worksite raids carried out by Immigration and Customs Enforcement, where hundreds of low-wage workers were rounded up, harming communities and businesses and separating families.45

Such raids do not improve conditions for workers but serve only to increase the immense power that employers already have over workers—power that they use to keep workers from complaining in the face of workplace violations and to discourage them from joining and forming unions.46 Immigrant raids punish workers, while employers rarely suffer any consequences at all for breaking the law—when they do, it usually amounts to no more than a slap on the wrist.47

In addition to ending the practice of mass worksite raids, the Biden administration memo commits the Department of Homeland Security (DHS) to focus on adopting policies and practices that penalize employers for breaking the law, encourage immigrant workers to come forward and report violations, and improve cooperation with labor standards enforcement agencies.

Issued updated guidance and policies that help protect the labor rights of immigrant workers

In November 2021, National Labor Relations Board General Counsel Jennifer Abruzzo took an important step toward protecting immigrants involved in labor disputes with their employers when she released a detailed memo titled “Ensuring Rights and Remedies for Immigrant Workers Under the NLRA [National Labor Relations Act].” The memo outlines policies and instructions to NLRB field offices on how to handle cases that involve workers who may have issues arise regarding their immigration status or work authorization when exercising their NLRA-protected right to take collective action.48 This was followed up with a one-page fact sheet in May 2022 to help witnesses in these cases understand their rights with respect to immigration status and the NLRA and NLRB investigations.49

It is important to remember that immigrant workers—even those who lack an immigration status or who have only a temporary status—are protected by U.S. labor and employment laws and the NLRA.50 The NLRB’s guidance clearly delineates a range of actions the agency can take to protect immigrant workers, such as seeking immigration status protections, seeking injunctive relief, and cooperating with other federal agencies.

Provided guidance on how immigrant workers in labor disputes can request support for immigration status protection from the Department for Homeland Security

While the NLRB’s actions discussed in the previous section are geared toward protecting workers’ freedom of association, the Department of Labor took an important step with great potential to protect immigrant workers in other types of workplace disputes.

In July 2022, DOL issued guidance in the form of a four-page Frequently Asked Questions document aimed at immigrant workers who have come forward to report labor and workplace abuses to DOL or are considering doing so. The FAQ informs these workers how to seek DOL’s support when requesting immigration status protections from the Department of Homeland Security, which has final say on issues of status and deportation.51

Specifically, the guidance helps immigrant workers involved in labor disputes understand how to request a “Statement of DOL Interest.” This statement expresses DOL’s formal support for a worker and requests that DHS use prosecutorial discretion to provide the worker with one of the possible forms of postponement of deportation, such as deferred action or parole.

Allowing workers to remain in the United States through deferred action or parole would allow both undocumented workers (who lack an immigration status) and migrants with nonimmigrant work visas (whose status is tied to their employer) to proceed in their labor disputes without fear of retaliation based on their immigration status. In addition, deferred action and parole may include the issuance of an employment authorization document from the Department of Homeland Security. Granting work authorization would allow workers to lawfully seek employment elsewhere so they could support themselves and their families.52

Given the large backlogs and lengthy processing times for U and T visas for victims of crime and trafficking, which usually take years before they are issued,53 prosecutorial discretion from DHS has the potential to benefit workers by being granted much faster. It could also benefit more workers in labor disputes who may not meet the narrow requirements for those visas.

For this process to ultimately be a success, DHS also needs to issue complementary guidance and formalize the process for immigrant workers in labor disputes who wish to request immigration status protections, something that immigrant and worker advocates have called for.54

Protecting the right to organize

Withdrew a Trump rule that would have curtailed efforts to combat federal workplace discrimination

As part of a January 2021 regulatory rulemaking freeze, President Biden withdrew a Trump EEOC rule that would have curtailed efforts to combat workplace discrimination.55 The rule had prohibited union representatives from using official time to represent co-workers in equal employment opportunity matters. This effectively limited the right of federal workers to choose their representative in the EEOC complaint process. Further, the rule created enormous cost burdens for federal workers who want to file a workplace discrimination complaint. This had serious implications for Black workers, who are disproportionately represented in federal employment covered by a union contract.56

Revoked a series of Trump executive orders that undermined federal workers’ right to form unions and collectively bargain

Within his first week in office, President Biden released the “Executive Order on Protecting the Federal Workforce.”57 This EO reversed several Trump-era rules and guidelines that undermined protections for federal employees and their right to collective bargaining. 

One of the Trump EOs was a transparent attempt to politicize career positions in the federal government.58 It would have effectively undermined protections from unfair firings or firings without cause. Affected employees would have been removed from their bargaining units and barred from future representation by a union.

Another of the Trump EOs undermined the collective bargaining process in the name of “developing efficient, effective, and cost-reducing approaches to federal sector collective bargaining.” This effectively led to less favorable contracts for workers. Another EO weakened due process protections for federal workers subject to discipline.

Finally, Trump EO 13837 significantly reduced the amount of “official time” an employee could use to perform their duties as a labor representative. This undermined unions’ abilities to negotiate fair contracts, address claims of unfair labor practices by employers, and enforce due process in disciplinary actions.

Championed the Protecting Right to Organize Act

President Biden has been a vocal supporter of unions and the right to organize.59 The day before the House of Representatives passed the Protecting Right to Organize (PRO) Act, the Biden administration issued a Statement of Administration Policy60 in support of the bill.61

The House passage of the PRO Act on March 9, 2021, marks a critical step toward restoring workers’ right to organize with their co-workers and bargain collectively for better pay, benefits, and fairness on the job.62 This fundamental right has been eroded for decades as employers exploit weaknesses in the current law and lobby the government to weaken current protections. The result has been stagnant wage growth, unsafe workplaces, and rising inequality.

The Senate has not yet acted on this crucial bill.

Established a task force to encourage worker organizing and collective bargaining

In April 2021, President Biden issued an executive order establishing the White House Task Force on Worker Organizing and Empowerment.63 The task force is chaired by Vice President Kamala Harris and vice-chaired by Labor Secretary Marty Walsh.64 In February 2022, the task force released a report with policy recommendations ranging from increasing workers’ awareness of their rights on the job to strengthening enforcement of current U.S. labor laws.65

Reinstated and recovered back pay for workers who were illegally fired for union activity

Notably, the decades-long chronic under-resourcing of the National Labor Relations Board has created challenges to its enforcement capacity. This has been particularly true amid the recent surge of interest in forming unions—and in the face of employers’ anti-union activity. Despite limited resources, NLRB staff have worked to improve performance and deliver results.

In FY2021, the Board recovered at least $56 million—44% more than in the previous year—on behalf of workers whose rights were violated. Additionally, the Board worked to increase the number of workers who were reinstated in their jobs after being unfairly fired. They succeeded in increasing reinstatement offers from employers by 545%. The NLRB also worked to address backlogs and delays in the system, reducing the median age of pending cases by 15%. These significant improvements are emblematic of the Board’s recommitment to protecting the rights and well-being of workers.

Advocated for a more stringent test to protect workers against misclassification and thereby protect their right to organize

NLRB General Counsel (GC) Abruzzo recognized that misclassification robs employees of their rights under the National Labor Relations Act, the law that provides most private-sector workers the right to unionize and collectively bargain. Independent contractors—or workers who have been misclassified as such—are not covered or protected by the Act.66

Misclassification is a rampant issue, with the U.S. Department of Labor estimating that as many as 30% of firms misclassify workers as independent contractors. In a February 2022 brief, the General Counsel called for a broader test that would provide “for the greatest possible protections for workers.” This could have significant implications in expanding the rights of countless workers who have been misclassified.

Called for college athletes to be protected under the National Labor Relations Act

NLRB General Counsel Abruzzo provided guidance to NLRB regional field offices to treat athletes at private academic institutions as employees. This guidance grants college athletes protections under the NLRA,67 which would allow them to collectively bargain and have input into their workplace conditions.

The GC indicated that she intends to prosecute as violating the NLRA those who misclassify “such employees as mere ‘student-athletes’” and misrepresent the protections to which they are entitled. Proper classification of student employees could have a monumental impact in the lucrative industry of college athletics, which has historically exploited its athletes. 

Sought to ban anti-union ‘captive audience meetings’

NLRB General Counsel Abruzzo is seeking to ban captive audience meetings, wherein employees are required, in a group setting, to listen to the employer’s anti-union views or else face termination or other discipline.

Captive audience meetings are among the most frequently used tactics to thwart unionization efforts,68 with employers spending large sums hiring “anti-union consultants” to host these meetings.69 Ending captive audience meetings would free workers of severe intimidation tactics that inhibit their ability to make decisions regarding unionization of their own accord. 

Urged reinstatement of the Joy Silk doctrine, which would help workers form a union without undue employer interference

In April 2022, NLRB General Counsel Abruzzo issued a brief urging the Board to reinstate the Joy Silk doctrine.70 The Joy Silk doctrine is a legal precedent, followed by the National Labor Relations Board from 1949 until the 1970s,71 that allowed unions to gain recognition via card check rather than going through an election process. That is, the union could be recognized by the NLRB if they got a majority of workers in the proposed bargaining unit to sign cards saying they support the union. An employer who wanted the workers to go through the election process would have to demonstrate “good-faith doubt” that there is majority support for a union (and the NLRB would have to find the employer’s claim to be true).

Urged monetary consequences for employers who engage in bargaining delay tactics and unfair labor practices

In June 2022, NLRB General Counsel Abruzzo filed a motion urging the Board to require that employers make employees whole with monetary relief for the potential increased benefits and pay that workers lose out on when these employers stall or impede the collective bargaining process.72 As it stands, employers can delay bargaining for years on end and face only limited monetary consequences, thereby limiting the incentives to bargain in a timely manner and in good faith.

In a separate brief, the General Counsel also urged the board to include consequential damages when assessing remedies in unfair labor practices.73 The GC urged the board to go beyond back pay and reinstatement relief and to consider reimbursement for associated emotional distress, foreseeable costs related to job loss or demotion, and expenses related to health, housing, transportation, child care, and immigration. Broadening the scope of remedies would further deter employers’ unlawful conduct and help to make workers whole.

Urged overturning the Trump-era Boeing test that made it easier for employers to restrict workers’ NLRA rights

In March 2022, NLRB General Counsel Abruzzo filed a brief urging the Board to overturn the Trump-era Boeing test. The Boeing test had replaced the “reasonably construe” standard for analyzing whether workplace rules unduly infringe on workers’ rights under the National Labor Relations Act.74

“Reasonably construe” is a stronger standard for protecting workers’ rights. Under this standard, the National Labor Relations Board would strike down a workplace rule when “a reasonable employee could conclude that the workplace rule in question prohibits or ‘chills’ the exercise of rights.” For example, an employer’s “no loitering” rule would be deemed unlawful if it prevented workers from remaining at their workplace after working hours to engage in protected concerted activity.

The Boeing test dictates that the Board consider (1) the nature and extent of the potential impact on NLRA rights, and (2) the employer’s legitimate justifications associated with the rule. This employer-friendly test effectively gave employers more leeway to adopt rules, policies, and handbook provisions that limit workers’ freedom to exercise their NLRA rights.75

Took action to prevent employers from gerrymandering bargaining units

In January 2022, NLRB General Counsel Abruzzo urged the National Labor Relations Board to reject the so-called PCC Structurals standard, which was adopted under the Trump Board.76 Under PCC Structurals, the Trump Board changed the standard for what constitutes an “appropriate” bargaining unit. This gave employers greater ability to thwart workers who wish to form a union. Employers could essentially redefine who would be in the bargaining unit—packing it with workers who are less likely to vote for a union.77

GC Abruzzo called for a return to the Specialty Healthcare standard, which stipulates that the bargaining unit defined by employees when petitioning to form a union at their workplace was presumptively appropriate if the employees shared a “community of interest.” Under the Specialty Healthcare standard, the NLRB would respect the workers’ choice unless the employer made a compelling case as to why the bargaining unit was not appropriate.

Opposed Trump-era rules regarding access for union representatives

NLRB GC Abruzzo has opposed Trump-era Board rulings (UPMC, Kroger) that allowed employers to restrict union representatives’ access to public spaces in their facilities.78 These decisions deprived employees and unions of key opportunities to talk about workplace issues.

The Trump Board allowed employers to blatantly discriminate against union communications in particular. Employers could single out and exclude union organizers and others engaging in union communications from public spaces. Meanwhile, these employers would give the general public and other (nonunion) groups unfettered access to communicate with employees or consumers in these spaces.79

Protecting workers’ economic stability

Paused student loan debt payments

On January 20, 2021, President Biden directed the Department of Education to freeze monthly payments and interest on federal student loans through September of that year. The president then extended the freeze four more times—until January 31, 2022, then May 1, 2022, then August 31, 2022, and finally until December 31, 2022.80 These extended breaks have given an estimated 41 million borrowers much-needed relief as they struggled to retain their economic security amid the ongoing COVID-19 pandemic and turbulent U.S. economy.81

Enacted comprehensive fiscal stimulus to boost recovery from the pandemic recession

In March 2021, President Biden signed the American Rescue Plan Act (ARPA) into law. This $1.9 trillion relief and recovery bill helped the economy recover at a tremendous pace and aided working families through difficult times.82 The ARPA reflected lessons learned from the disastrously slow recovery from the Great Recession and financial crisis of 2008–2009. Following the 2008 crisis, it took 75 months for private-sector employment to regain its pre-recession peak. In contrast, this time around private-sector employment regained its pre-recession peak in just 28 months—even though the job loss from the pandemic recession was well over twice as large as that experienced during the Great Recession.83

The faster recovery this time was directly driven by the ARPA. The ARPA kept families afloat by extending enhanced unemployment insurance benefits and eligibility until September 2021. It provided a $1,400 stimulus check to most adults in the U.S. and introduced an expanded Child Tax Credit. It also increased Affordable Care Act subsidies and provided additional funding for housing and rental assistance programs, among many other things.84 And on a community level, the ARPA provided state and local governments with essential funds to make transformative investments to support an equitable recovery.85

Canceled student loans for over 300,000 borrowers with disabilities

In August 2021, the Department of Education announced that it would cancel $5.8 billion worth of student loans for over 300,000 borrowers. Borrowers are eligible for loan cancellation if they have a total and permanent disability that prevents them from working.86

Is seeking to restore the quality of employment services for job seekers

In April 2022, the Biden Department of Labor proposed a rule that would restore the quality of employment services for unemployed job seekers, which had been undermined by a Trump rule. The Biden DOL rule would require states to use state merit staff to provide employment services, including job search, job referral, and placement assistance.87

The rulemaking is a response to a Trump rule that allowed states to privatize these services—using contractors or other personnel, instead of public employees, in the administration of the employment services program. Privatization is very likely to compromise the quality of employment services, as well as reduce the quality of jobs for those providing the services.88

If finalized, the Biden rule would restore the long-standing state merit staffing requirement that helps ensure that job seekers receive unbiased, efficient, and equitable delivery of employment services.89

Canceled student loans for 200,000 victims of predatory lending practices

In June 2022, the Department of Education agreed to cancel approximately $6 billion in student loans for around 200,000 borrowers. These borrowers were victims of predatory lending practices by for-profit schools.90 Their claims had been left in limbo under the Trump Department of Education.

Canceled $10,000 in student debt for borrowers earning less than $125,000

In August 2022, President Biden announced that $10,000 in federal student loan debt would be canceled for individuals making $125,000 or less per year. The Biden administration is providing an additional $10,000 in student loan forgiveness for individuals who received Pell Grants during college, for a total of $20,000 in canceled debts for those borrowers.91

Protecting workers’ jobs

Reinstated the nondisplacement rule for federal contractors

In December 2021, President Biden reinstated and expanded an executive order from the Obama administration that gives employees of federal contractors the right of first refusal for employment on a new contract when a federal service contract changes hands.92

Protecting workers’ health and safety

Issued guidance to mitigate COVID-19 in workplaces

On January 29, 2021, the Occupational Safety and Health Administration (OSHA) issued guidance to mitigate the impact of COVID-19 in workplaces.93 The guidance specifically called for employers to provide further protections, beyond those already in place, for workers who are unvaccinated or at high risk of severe illness, and it recommended nonpunitive accommodations for workers who must isolate or quarantine due to the virus. Importantly, OSHA provided reporting guidance for workers who have been retaliated against for speaking out about COVID-related health and safety concerns in their workplace.

Acted to protect workers in health care settings from COVID-19

On June 21, 2021, OSHA adopted an Emergency Temporary Standard (ETS) defining the steps employers are required to take to protect health care workers and support staff from the hazards of COVID-19.94 Among other things, it mandated that employers provide appropriate personal protective equipment to employees and that they cover the cost if they require employees to be tested for COVID.

Pursued a vaccine-or-test mandate to further protect workers from COVID-19 in the workplace 

In early November 2021, OSHA proposed an additional ETS requiring employers to take steps to mitigate the health dangers posed by COVID-19 in the workplace.95 The centerpiece of the ETS was a vaccine-or-test mandate for employees of firms with over 100 employees.

The vaccine-or-test mandate was seen as a key plank in an effective public health response to the continuing havoc wreaked by COVID-19. Not only would it have reduced deaths and hospitalizations, but it also would have increased economic growth—since a healthier workforce is a more productive workforce. However, OSHA officially withdrew the ETS after the Supreme Court prevented it from going into effect in January 2022.96 

Protecting workers’ legal rights and enforcing labor standards

Improved job quality for workers on federal construction projects

In February 2022, President Biden signed an executive order requiring project labor agreements (PLAs) on federal construction projects over $35 million.97

PLAs establish fair wages and benefits for all workers on these projects. Further, PLAs help ensure worker health and safety protections while providing a unique opportunity for workforce development: These agreements can be written to engage local populations, provide jobs for underrepresented groups, and develop experience for apprentices. PLAs are also effective mechanisms for controlling construction costs and ensuring efficient completion of projects.98

President Biden’s executive order is expected to affect $262 billion in federal construction contracting and improve job quality for nearly 200,000 workers.99

Revoked Trump executive order that privatized apprenticeship programs

In February 2021, President Biden revoked an executive order issued by President Trump that allowed third-party private entities to develop government-funded apprenticeship programs.100 By permitting third parties to set their own standards for government-funded apprenticeship programs, the Trump executive order inhibited the Department of Labor from providing proper oversight of federal apprenticeship program standards. This jeopardizes the quality of the program.101

Rescinded the Trump joint employer rule

In September 2021, the Biden DOL rescinded a Trump administration rule that dramatically narrowed the set of circumstances whereby a firm can be found to be a “joint employer” under the Fair Labor Standards Act (FLSA). The joint employer standard ensures that when two or more firms control the terms and conditions of employment (such as pay, schedules, and job duties),102 all of those firms are held accountable for upholding workers’ rights.103

The Trump rule enabled employers to limit and evade their liability for violations under the FLSA, making it harder for workers to hold all parties who set their terms of employment accountable. The Trump rule would have cost workers more than $1 billion annually by increasing wage theft and by incentivizing workplace fissuring.104

A judge in the U.S. District Court for the Southern District of New York struck down most of the Trump rule in September 2020, finding that “the Department’s novel interpretation for vertical joint employer liability conflicts with the FLSA and is arbitrary and capricious.”105 The Biden DOL then rescinded the rule in its entirety in 2021.106

Suspended rulemaking narrowing the joint employer standard in EEOC matters

The Biden administration suspended a proposed Trump EEOC rule governing the joint employer standard. The rule would have significantly narrowed the definition of joint employer in EEOC matters, making it more difficult to hold employers accountable for discrimination and harassment.107 It would have limited workers’ rights under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Genetic Information Nondiscrimination Act, and the Americans with Disabilities Act.

Encouraged the Federal Trade Commission to ban noncompete agreements

On July 9, 2021, President Biden issued executive order 14036, which encourages the Federal Trade Commission to ban or limit noncompete agreements.108

Noncompete agreements—which employees are often required to sign as a condition of employment—block employees from working for a competitor for a set period of time if they leave their current job. Nearly 1 in 5 U.S. workers is bound by a noncompete agreement,109 and it’s not just highly paid workers with access to trade secrets who are required to sign—30% of those subject to noncompetes earn less than $13 an hour.110

Noncompetes severely restrict the most important point of leverage nonunionized workers have: the fact that they can quit and work somewhere else. Regulating noncompete clauses levels the playing field for employees, restoring their ability to improve their working conditions.

Banned the use of forced arbitration in cases of sexual harassment and sexual assault at work

In February 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act into law. This bipartisan bill allows workers who experience sexual harassment or sexual assault at work to file a case in court rather than be forced into arbitration.111 The bill allows victims to hold perpetrators and institutions accountable outside of closed-door arbitration proceedings and shine light on systemic issues of wrong-doing.

This is an important step toward dismantling a system that favors predispute binding arbitration clauses. These clauses waive an individual’s fundamental rights to seek accountability in court when they are hurt or when their rights are violated. In 2017, 56.2% of private-sector nonunion workers were subject to forced arbitration agreements. It is projected that share will grow to 80% by 2024.112

Is working to strengthen employee status under the Fair Labor Standards Act

As of June 2022, the Biden Department of Labor is developing a proposed rule to prevent workers from being misclassified under the FLSA.113 The rule would replace a Trump DOL rule that makes it easier for employers to classify workers as independent contractors rather than as employees.114 While employees are protected under the Fair Labor Standards Act—ensuring them the right to a minimum wage and overtime, among other fundamental worker protections—independent contractors are not.

The Trump rule is estimated to cost workers more than $3.7 billion annually.115 The Biden Department of Labor had sought to delay and withdraw the Trump rule in 2021. However, a district court in the Eastern District of Texas vacated the Biden DOL’s attempts to delay and withdraw the rule and stated that the Trump rule was in effect as of March 2021.116

Raising workers’ pay

Strengthened protections for tipped workers

In October 2021, the Biden DOL finalized a rule that updated regulations on the amount of time tipped workers can spend working on nontipped duties while their employer takes a tip credit.117 The rule reinstated and strengthened critical protections for those workers who depend on tips for a significant portion of their wages.

An employer can take a tip credit—meaning the employer can pay tipped employees less than the standard minimum wage—if the total of employee wages and tips adds up to at least the standard minimum wage. In addition, the Department of Labor has historically limited the amount of time tipped workers can spend on tasks that directly support their tipped work but for which they do not receive tips (for example, a server rolling silverware or vacuuming under tables). The “80/20 rule” dictates that tipped workers should not spend more than 20% of their total work time on such tasks. This ensures tipped workers can spend the majority of their time (at least 80%) doing activities for which they earn tips. Workers who spend more than 20% of their time on such tasks must be paid the regular minimum wage for the additional time over 20%.118

The Biden DOL rule revised a Trump administration rule that had sought to do away with the 80/20 rule.119 EPI estimated that the Trump rule would have cost tipped workers $700 million annually.120 (The Trump rule was finalized but did not go into effect before President Biden took office.)

The Biden DOL rule reinstated the 80/20 rule. It also further strengthened protections for tipped workers by explicitly stating that employers cannot apply the tip credit to time spent performing side duties if the time spent on those tasks exceeds 30 consecutive minutes.121

Raised the minimum wage for federal contractors to $15 an hour

On January 30, 2022, the Biden DOL finalized a rule that implemented executive order 14026, raising the hourly minimum wage for employees on federal contracts to $15 an hour.122 The rule also phases out the subminimum wage for tipped workers on federal contracts and continues to increase the federal contract minimum wage in line with inflation.

Nearly 390,000 federal contractors, about half of whom are Black or Hispanic, benefit from the rule.123 In addition to increasing the incomes of federal contractors, the new minimum wage standard also helps to raise wages throughout the labor market. Higher contractor wages force other firms to raise wages in order to recruit and retain workers who now have higher-paid options elsewhere.124

Proposed much-needed updates to regulations requiring federal contractors to pay their workers the local prevailing wage

In March 2022, the Biden DOL proposed a rulemaking that would amend regulations issued under the Davis-Bacon and Related Acts (DBRA), which requires that workers on federally funded construction projects be paid at least the local prevailing wage including fringe benefits.125 These updates represent the first comprehensive review of the DBRA in 40 years. If finalized, the rule would modernize prevailing wage rates to ensure they are reflective of local wages.126

Conclusion

President Biden took office faced with the enormous task of reversing the harmful anti-worker policies implemented by President Trump. Over the last two years, the Biden administration has largely halted, withdrawn, or reversed the Trump administration’s pro-corporate, anti-worker agenda while simultaneously implementing policies that set higher standards for workers and their families.

However, these actions are just a start. More must be done to address the weak labor standards and extreme economic inequality U.S. workers face today. Namely, Congress must pass labor law reform and a higher federal minimum wage. The freedom to form a union, and a strong national wage floor, are foundational and are two of the most powerful tools Congress can grant workers to advance their rights. Not until these measures are in place can we begin to make real progress toward reducing racial and gender wage gaps and addressing economic inequality overall.

Acknowledgments

The authors would like to thank Josh Bivens and Daniel Costa for their valuable input and Krista Faries for her editorial excellence on this report.

Notes

1. See Makenzie Huber, “‘Essential Worker Just Means You’re on the Death Track’,” USA Today, May 4, 2020, and Jay Peters, “Amazon Says 19,816 Workers Have Contracted COVID-19,” The Verge, October 1, 2020.

2. Economic Policy Institute, “Jobs and Unemployment” (web page), last modified July 8, 2022.

3. The White House, “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” January 20, 2021.

4. The White House, Equity Action Plan Summary: U.S. Department of Treasury, April 2022.

5. The White House, Equity Action Plan Summary: U.S. Department of Housing and Urban Development, April 2022.

6. The White House, “Advancing Equity and Racial Justice Through the Federal Government” (web page), last accessed August 16, 2022.

7. A Joint Resolution Providing for Congressional Disapproval under Chapter 8 of Title 5, United States Code, of the Rule Submitted by the Equal Employment Opportunity Commission Relating to “Update of Commission’s Conciliation Procedures,” S.J.Res.13, 117th Cong. (2021).

8. EEOC, “What You Should Know: The EEOC, Conciliation, and Litigation” (web page), accessed August 23, 2022.

9. The White House, “Fact Sheet: President Biden Signs Executive Order Advancing Diversity, Equity, Inclusion, and Accessibility in the Federal Government,” June 25, 2021.

10. U.S. Department of Labor, “Revocation of Executive Order 13950” (web page), accessed July 28, 2022.

11. U.S. Department of Labor, Office of Federal Contract Compliance Programs, “Executive Order 11246 – Equal Employment Opportunity” (web page), accessed July 28, 2022.

12. 86 Federal Register at 62117.

13. Wiley Law, “DOL OFCCP Finalizes Rule on Religious Exemptions for Government Contractors,” December 10, 2020. 

14. The White House, “Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation,” January 20, 2021.

15. For more about how regulations work and why they are essential, see Heidi Shierholz and Celine McNicholas, “Understanding the Anti-Regulation Agenda” (fact sheet), Economic Policy Institute, April 2017.

16. Caitlin Reilly, “Walsh Confirmed to Lead the Labor Department,” Roll Call, March 21, 2021.

17. Office of the Secretary, “Secretary of Labor Martin J. Walsh” (web page), Department of Labor, accessed on August 16, 2022.

18. Daniel Wiessner, “Senate Confirms Calif. Labor Secretary Su to DOL’s No. 2 Spot,” Reuters, July 13, 2021.

19. Office of the Secretary, “Deputy Secretary of Labor Julie A. Su” (web page), Department of Labor, accessed on August 16, 2022.

20. U.S. Senate Committee on Health, Education, Labor and Pensions, “Senate Confirms Gwynne Wilcox and David Prouty to the NLRB” (news release), July 28, 2021; Ian Kullgren, “Abruzzo Confirmed as NLRB Top Lawyer by Harris Tiebreak,” Bloomberg Law, July 21, 2021.

21. National Labor Relations Board, “Gwynne A. Wilcox” (web page), accessed on August 16, 2022; National Labor Relations Board, “David M. Prouty” (web page), accessed on August 16, 2022.

22. National Labor Relations Board, “General Counsel” (web page), accessed on August 16, 2022. 

23. See reason no. 42 in Celine McNicholas, Lynn Rhinehart, and Margaret Poydock, 50 Reasons the Trump Administration Is Bad for Workers, Economic Policy Institute, October 2019.

24. Celine McNicholas, Margaret Poydock, and Lynn Rhinehart, Unprecedented: The Trump NLRB’s Attack on Workers’ Rights, Economic Policy Institute, September 2020.

25. Jason Vazquez, “Judge Ketanji Brown Jackson’s Labor Decisions,” On Labor, February 28, 2022.

26. The White House, “Statement from President Biden after Senate Confirmation of Federal Reserve Nominees,” May 12, 2022.

27. Adewale A. Maye, “Following Dr. Lisa Cook’s Historic Confirmation to the Federal Reserve Board, We Must Acknowledge the Importance of Black Economists for Public Policy and the Economy,” Working Economics (Economic Policy Institute blog), May 20, 2022.

28. The White House, “Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers,” January 25, 2021.

29. Robert E. Scott, Valerie Wilson, Jori Kandra, and Daniel Perez, Botched Policy Responses to Globalization Have Decimated Manufacturing Employment with Often Overlooked Costs for Black, Brown, and Other Workers of Color, Economic Policy Institute, January 2021. 

30. Courtney Buble, “White House Outlines ‘Made in America’ Executive Order Implementation,” Government Executive, June 14, 2021.

31. Kevin Cashman, “Special Drawing Rights Could Help Recover Millions of Export-Related U.S. Jobs, and Create Even More,” Center for Economic and Policy Research, August 2, 2021.

32. Rebecca Kysar, “Profit Shifting and Offshoring in the New International Tax Regime,” presentation for EPI event on the TCJA, May 7, 2018.

33. Janet Yellen, “Statement from Secretary Janet Yellen on the Global Minimum Tax Agreement,” U.S. Treasury Department, October 30, 2021.

34. Infrastructure Investment and Jobs Act [H.R. 3684], 117th Cong. (2021).

35. Adam S. Hersh, ‘Build Back Better’ Agenda Will Ensure Strong, Stable Recovery in Coming Years, Economic Policy Institute, September 2021.

36. U.S. House Committee on Oversight and Reform, “President Biden Signs Maloney, Comer, Peters, Portman’s Postal Service Reform Act into Law” (news release), April 6, 2021.

37. Monique Morrissey, The War Against the Postal Service, Economic Policy Institute, December 2020.

38. For more information on the pre-funding mandate and Medicare integration, see the fact sheet “Postal Service Reform Act of 2021” from the House Committee on Oversight and Reform.

39. See, for example, Congressional Research Service, “The U.S. Postal Service and Six-Day Delivery: History, Issues, and Current Legislation” (R40626), updated October 17, 2012.

40. The Act requires the creation of a public dashboard with weekly performance data to help identify and resolve service disruptions. See the fact sheet “Postal Service Reform Act of 2021” from the House Committee on Oversight and Reform.

41. Inflation Reduction Act of 2022 [H.R. 5376], 117th Cong. (2022). 

42. Rebecca Leber, “The Senate Just Passed One of the Biggest Bills to Fight Climate Change, Ever,” Vox, August 7, 2022.

43. Rachel Roubein, “How the Inflation Reduction Act Might Affect Your Health Care,” Washington Post, August 9, 2022.

44. Secretary Alejandro Mayorkas, “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual,” Policy Statement 065-06, U.S. Department of Homeland Security, October 12, 2021.

45. Rogelio Solis and Jeff Amy, “Largest US Immigration Raids in a Decade Net 680 Arrests,” Associated Press, August 7, 2019; Daniella Silva, Gabe Gutierrez, and Annie Rose Ramos, “‘Where Is Daddy?’: Children ‘Suffering’ in Aftermath of Mass Mississippi ICE Raids,” NBC News, August 9, 2019.

46. Rebecca Smith, Ana Avendaño, and Julie Martínez Ortega, Iced Out: How Immigration Enforcement Has Interfered with Workers’ Rights, AFL-CIO, American Rights at Work Education Fund, and National Employment Law Project, October 2009.

47. Maye Primera, “Months After ICE Raids, an Impoverished Mississippi Community Is Still Reeling,” The Intercept, October 13, 2019.

48. National Labor Relations Board, “General Counsel Jennifer Abruzzo Releases Memo on Ensuring Rights and Remedies for Immigrant Workers,” Office of Public Affairs, November 8, 2021.

49. National Labor Relations Board, “Important Information About NLRB Investigations for Immigrant Workers” (fact sheet), May 2, 2022.

50. While the Hoffman Plastics Supreme Court decision continues to prevent undocumented immigrant workers from being awarded back pay under the NLRA for work that would have been performed had they not been illegally fired, they are covered by the rest of the NLRA’s protections as well as by the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, which provide key protections on labor standards regardless of immigration status. See, for example, Wage and Hour Division, “Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastics Decision on Laws Enforced by the Wage and Hour Division,” revised July 2008, U.S. Department of Labor.

51. U.S. Department of Labor, “US Department of Labor Posts Process for Seeking Its Support for Immigration-Related Prosecutorial Discretion During Labor Disputes,” Office of the Solicitor, News Release, July 6, 2022.

52. Daniel Costa, Temporary Work Visa Programs and the Need for Reform: A Briefing on Program Frameworks, Policy Issues and Fixes, and the Impact of COVID-19, Economic Policy Institute, February 3, 2021.

53. United States Citizenship and Immigration Services, “Victims of Human Trafficking and Other Crimes,” U.S. Department of Homeland Security, last updated May 12, 2022; National Immigration Law Center, The U Visa and How It Can Protect Workers, September 2010; Eileen Sullivan, “Biden Extends Temporary Work Permissions for Some Undocumented Immigrants Who Are Victims of Crime,” New York Times, June 14, 2021.

54. See for example, Migration that Works, “Migration that Works welcomes the latest @USDOL FAQ supporting immigration-related prosecutorial discretion for immigrant and migrant workers in labor disputes,” Twitter, @MigrationthtWks, July 21, 2022, 5:38 p.m.; Emily Brill, “DOL Releases Guidance for Immigrants in Labor Disputes,” Law360, July 7, 2022.

55. Lisa Nagele-Piazza, “EEOC Freezes Rules on Wellness Programs and Union ‘Official Time’,” SHRM, February 18, 2021.

56. Margaret Poydock, Celine McNicholas, and Julia Wolfe, “The Trump Administration Finalizes Rule Attacking Federal Workers’ Right to Union Representation in Workplace Discrimination Cases,” Working Economics Blog (Economic Policy Institute), January 13, 2021.

57. The White House, “Executive Order on Protecting the Federal Workforce,” January 21, 2021.

58. Eric Yoder, “Trump Appointee Resigns Over the President’s Order Removing Job Protections for Many Civil Servants,” Washington Post, October 26, 2020.

59. Clyde Hughes, “Biden Speech to AFL-CIO: Unions, Middle Class ‘Built This Country’,” United Press International (UPI), June 14, 2022.

60. “Statements of Administration Policy, or SAPs, are designed to signal the Administration’s position on legislation scheduled on the House and Senate floor” (Meghan M. Stuessy, Statements of Administration Policy, Congressional Research Service, June 21, 2016).

61. Office of Management and Budget, Statement of Administration Policy: H.R. 842 – Protecting the Right to Organize Act of 2021, March 8, 2021.

62. Celine McNicholas, Margaret Poydock, and Lynn Rhinehart, “The PRO Act Is Pro-Worker,” Working Economics Blog (Economic Policy Institute), February 4, 2021.

63. The White House, “Executive Order on Worker Organizing and Empowerment,” April 26, 2021.

64. The White House, “FACT SHEET: Executive Order Establishing the White House Task Force on Worker Organizing and Empowerment” (news release), April 26, 2021.

65. The White House, White House Task Force on Worker Organizing and Empowerment: Report to the President, February 2022.

66. NLRB General Counsel, “Yesterday, NLRB General Counsel Jennifer Abruzzo filed a brief in which she explains that when the Board classifies workers as independent contractors…,” Twitter, @NLRBGC, February 11, 2022, 11:41 a.m.

67. National Labor Relations Board, “NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions” (news release), September 29, 2021.

68. Kate Bronfenbrenner, No Holds Barred—The Intensification of Employer Opposition to Organizing, Economic Policy Institute and the American Rights at Work Education Fund, May 2009.

69. Dave Jamieson, “Amazon Spent $4.3 Million on Anti-Union Consultants Last Year,” Huffington Post, March 31, 2022.

70. NLRB General Counsel, “The NLRB continued to follow the Joy Silk doctrine until the 1970s, when the Board abandoned it. GC Abruzzo has previously said that she would consider asking the Board to reinstate it,” Twitter, @NLRBGC, April 13, 2022, 9:34 a.m.

71. Ian Ward, “The Lie That Helped Kill the Labor Movement,” Politico, June 7, 2022.

72. NLRB General Counsel, “Based on a 1970 case called Ex-Cell-O, the remedy for an unlawful refusal to bargain is typically a prospective bargaining order,” Twitter, @NLRBGC, June 28, 2022, 10:02 a.m.

73. NLRB General Counsel, “This week, the GC filed a brief urging the Board to do so, explaining that current remedies fail to fully address and deter unlawful conduct,” Twitter, @NLRBGC, January 12, 2022, 10:07 a.m.

74. Vinson & Elkins LLP, “Bye Bye, Boeing: The NLRB Is Likely to Alter Flight Path Under Biden Administration,” JD Supra, February 15, 2021.

75. NLRB General Counsel, “Yesterday, GC Abruzzo filed a brief to the Board in a case called Stericycle arguing that the Board should overrule the Boeing test and find unlawful any workplace rule that a reasonable employee could read to interfere with their NLRA rights,” Twitter, @NLRBGC, March 8, 2022, 11:14 a.m.

76. NLRB General Counsel, “Last week, NLRB General Counsel Jennifer Abruzzo filed a brief urging the Board to reject PCC Structurals and return to its prior bargaining unit standard in a case called Specialty Healthcare,” Twitter, @NLRBGC, January 25, 2022, 10:55 a.m.

77. Celine McNicholas, Margaret Poydock, and Lynn Rhinehart, Unprecedented: The Trump NLRB’s Attack on Workers’ Rights, Economic Policy Institute, October 16, 2019.

78. National Labor Relations Board, Office of the General Counsel, Advice Memorandum, Subject: LAZ Parking Mid Atlantic, LLC, d/b/a LT Transportation Case 05-CA-281089, January 4, 2022.

79. Celine McNicholas, Margaret Poydock, and Lynn Rhinehart, Unprecedented: The Trump NLRB’s Attack on Workers’ Rights, Economic Policy Institute, October 2019.

80. U.S. Department of Education, “Biden-Harris Administration Announces Final Student Loan Pause Extension Through December 31 and Targeted Debt Cancellation to Smooth Transition to Repayment” (news release), August 24, 2022.

81. The White House, “Statement by Vice President Kamala Harris on Extending the Pause on Student Loan Repayment Through August 31st, 2022,” April 6, 2022.

82. Dave Kamper, “One Year In, the American Rescue Plan Has Fueled a Fast Recovery,” Working Economics (Economic Policy Institute blog), March 11, 2022.

83. Economic Policy Institute, “Jobs and Unemployment” (web page), last modified July 8, 2022.

84. Indivisible, “The American Rescue Plan Explained” (web page), accessed on July 28, 2022; Sharon Parrott, “American Rescue Plan: Shots in Arms and Money in Pockets,” testimony before U.S. Senate Committee on Banking, Housing and Urban Affairs, Washington D.C., March 25, 2021.

85. Dave Kamper, “State and Local Governments Have Made Transformative Investments with American Rescue Plan Recovery Funds in 2022,” Working Economics (Economic Policy Institute blog), July 6, 2022.

86. U.S. Department of Education, “Over 323,000 Federal Student Loan Borrowers to Receive $5.8 Billion in Automatic Total and Permanent Disability Discharges” (press release), August 19, 2021.

87. Wagner-Peyser Act Staffing, 87 Fed. Reg. 23700–23744 (April 20, 2022).

88. Heidi Shierholz, Celine McNicholas, and Margaret Poydock, “Proposed Rule to Privatize the Federal Employment Service Would Likely Reduce Services for Unemployed Workers,” comments submitted to the Department of Labor, Economic Policy Institute, July 24, 2019.

89. Margaret Poydock, “EPI Comments on DOL’s Proposed Wagner-Peyser Act Staffing Rule,” comments submitted to the Department of Labor, Economic Policy Institute, June 21, 2022.

90. Annie Nova, “Education Department Agrees to Cancel $6 Billion in Debt for Some 200,000 Student Loan Borrowers,” CNBC, June 23, 2022.

91. The White House, “Fact Sheet: President Biden Announces Student Loan Relief for Borrowers Who Need It Most,” August 24, 2022.

92. Nondisplacement of Qualified Workers Under Service Contracts, 86 Fed. Reg. 66397–66401 (November 23, 2021).

93. Occupational Safety and Health Administration, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (web page), last modified June 10, 2022.

94. Occupational Health and Safety Administration, “Summary – COVID-19 Healthcare ETS” (fact sheet), June 21, 2021.

95. Occupational Health and Safety Administration, “COVID-19 Vaccination and Testing ETS” (web page), last modified January 25, 2022.

96. COVID–19 Vaccination and Testing; Emergency Temporary Standard [Interim final rule; withdrawal], 87 Fed. Reg. 3928–3929 (January 26, 2022).

97. The White House, “Fact Sheet: President Biden Signs Executive Order to Boost Quality of Federal Construction Projects,” February 3, 2022.

98. Ihna Mangundayao, Celine McNicholas, and Margaret Poydock, “Project Labor Agreements on Federal Construction Projects Will Benefit Nearly 200,000 Workers,” Working Economics Blog (Economic Policy Institute), February 9, 2022.

99. The White House, “Fact Sheet: President Biden Signs Executive Order to Boost Quality of Federal Construction Projects,” February 3, 2022.

100. The White House, “Executive Order on the Revocation of Executive Order 13801,” February 17, 2021. 

101. Ian Kullgren and Marianne Levine, “Trump Signs Executive Order on Apprenticeships,” Politico, June 15, 2017.

102. As employers outsource various functions to contractors and subcontractors, the workplace has become increasingly “fissured”—meaning that two or more firms control the terms and conditions of a worker’s employment. See David Weil, The Fissured Workplace: Why Work Became So Bad and What Can Be Done to Improve It (Cambridge, Mass.: Harvard Univ. Press, 2014).

103. For further discussion of the joint employer standard, see Celine McNicholas and Marni von Wilpert, The Joint Employer Standard and the National Labor Relations Board: What Is at Stake for Workers?, Economic Policy Institute, May 2017.

104. Celine McNicholas and Heidi Shierholz, “EPI Comments Regarding the Department of Labor’s Proposed Joint-Employer Standard,” submitted to the Department of Labor, June 25, 2019.

105. Heidi Shierholz, “EPI Applauds Judge’s Decision on Joint-Employer Rule” (statement), Economic Policy Institute, September 9, 2020.

106. U.S. Department of Labor, “U.S. Department of Labor Announces Final Rule to Rescind March 2020 Joint Employer Rule, Ensure More Workers Minimum Wage, Overtime Protections” (news release), July 29, 2021. 

107. Joint Employer Status Under the Federal Equal Employment Opportunity Statutes, RIN: 3046-AB16.

108. The White House, “Executive Order on Promoting Competition in the American Economy,” July 9, 2021.

109. Najah A. Farely, Limiting Non-Compete Agreements Is Key to a Just Recovery, National Employment Law Project, May 2022.

110. Najah A. Farley, FAQ on Non-Compete Agreements, National Employment Law Project, May 2022.

111. Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 [H.R. 4445], 117th Cong. (2022).

112. Kate Hamaji, Rachel Deutsch, Elizabeth Nicolas, Celine McNicholas, Heidi Shierholz, and Margaret Poydock, Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers Are Fighting Back, Economic Policy Institute, Center for Popular Democracy, and National Employment Law Project, May 2019.

113. U.S. Department of Labor, Wage and Hour Division, “Independent Contractor Status Under the Fair Labor Standards Act” (web page), accessed July 28, 2022.

114. Independent Contractor Status Under the Fair Labor Standards Act, 86 Fed. Reg. 1168–1248 (January 7, 2021).

115. Heidi Shierholz and Margaret Poydock, “EPI Comments on the Withdrawal of the Independent Contractor Rule,” comments submitted to the Department of Labor, April 12, 2021.

116. Coalition for Workforce Innovation v. Walsh, 2022 WL 1073346 (E.D. Tex. 2022).

117. Tip Regulations Under the Fair Labor Standards Act (FLSA); Partial Withdrawal, 86 Fed. Reg. 60114–60158 (October 29, 2021).

118. For examples, see Department of Labor, Wage and Hour Division, “Tips Dual Jobs: Definitions and Examples” (web page), accessed August 23, 2022.

119. Heidi Shierholz and Margaret Poydock, “EPI Comments on the Partial Withdrawal and Re-Proposal of the 2020 Tip Final Rule,” comments submitted to the Department of Labor, August 23, 2022.

120. Heidi Shierholz and David Cooper, “Workers Will Lose More Than $700 Million Annually Under Proposed DOL Rule,” Working Economics Blog (Economic Policy Institute), November 30, 2019.

121. U.S. Department of Labor, Wage and Hour Division, “Tip Regulations Under the Fair Labor Standards Act (FLSA)” (web page), accessed on July 28, 2022.

122. U.S. Department of Labor, “US Department of Labor Announces Final Rule to Increase Minimum Wage for Workers on Federal Contracts Beginning Jan. 30, 2022” (news release), November 22, 2021.

123. Heidi Shierholz and Ben Zipperer, “EPI Comments on Proposal to Increase the Minimum Wage for Federal Contractors,” comments submitted to the Department of Labor, August 27, 2021.

124. Ben Zipperer, “Up to 390,000 Federal Contractors Will Get a Raise Starting Next Week,” Working Economics Blog (Economic Policy Institute), January 28, 2022.

125. Updating the Davis-Bacon and Related Acts Regulations, 87 Fed. Reg. 15698–15805 (March 8, 2021).

126. Ihna Mangundayao, Margaret Poydock, and Jennifer Sherer, “EPI Comments on DOL’s Proposed Updates to the Davis-Bacon and Related Acts Regulations,” comments submitted to the Department of Labor, May 17, 2022.

Introduction: Prosecutors are increasingly pursuing employer crimes against workers

Increasingly, district attorneys (DAs), state attorneys general (AGs), and other criminal prosecutors1 are bringing charges against employers for wage theft,2 misclassification and payroll fraud,3 workplace safety hazards, sexual assault, and human trafficking, among other crimes against workers. This development represents a shift, because historically, crimes against workers have not generally been prosecuted. More often, the criminal justice system has intervened to protect employers; for example, a worker stealing from an employer would likely face charges, while an employer committing wage theft likely would not. Yet state and local prosecutors have unique tools and an important role to play in protecting workers. Many are taking on this function as an enforcement priority, and more should get involved in this area.

The involvement of prosecutors is timely and has the potential for significant impact. As explained in this report, violations of workplace laws are widespread; state and federal labor agencies face serious limitations from a lack of resources, limited authority, and more; and private lawyers are often blocked from bringing cases because workers have been forced to sign arbitration provisions waiving their right to sue in court.

To familiarize prosecutors and worker advocates with this important work, this report provides:

• background on the increased involvement of criminal prosecutors in workers’ rights enforcement, the context in which such activity occurs, and a discussion of the rationale for such prosecutions
• descriptions and examples of the types of cases that have been brought
• discussions of several considerations related to such cases, including applicable statutes, sources of case referrals, criminal justice concerns, and funding sources
• appendices that include sample pleadings from recent cases, compilations of case reports, more detailed information about two state funding mechanisms, and tips for prosecutors and worker advocates on getting started in this work

Background: The growing involvement of prosecutors in addressing employer misconduct emerges in the context of widespread violations of workers’ rights and fits squarely within a prosecutor’s function

Increased involvement of prosecutors in workers’ rights violations has taken form in several ways. Offices have brought various types of cases. Some offices have created dedicated units or subunits to do this work, while others have handled individual cases as they have arisen. Increased prosecutor activity has emerged within a landscape in which violations of workers’ rights are widespread and avenues for redress are inadequate. In this context, there are numerous reasons for prosecutors to actively pursue employer crimes against workers.

Criminal prosecutors across the country are addressing a wide range of employer crimes against workers

A set of federal and state laws extend to most employees in the United States a bundle of protections covering wages paid and hours worked (wage and hour laws), safety hazards in the workplace (safety and health laws), economic security in the event of injury or unemployment (workers’ compensation and unemployment insurance laws), discrimination and harassment (equal opportunity laws), and other workplace conditions. In recent years, a powerful new enforcer has entered the picture in numerous jurisdictions: District attorneys and other prosecutors have brought cases involving employer-committed crimes against workers4—crimes including wage theft; labor trafficking; creating conditions causing predictable, preventable workplace fatalities and serious injuries; payroll fraud, including failure to pay unemployment insurance (UI) taxes and/or to procure workers’ compensation insurance, and/or misclassification of workers; prevailing wage violations;5 retaliation and witness intimidation; and workplace sexual assault (CPR n.d.; HPM Digital Team 2018; Graves 2020; Kashinsky 2019; Wash. AG 2018; Reyes 2021; Vosseller 2019; Mass. AG 2019; Byars 2017).

These cases have been brought in a range of jurisdictions, including in California, Colorado, Maine, Massachusetts, Michigan, Minnesota, Montana, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Texas, Virginia, and Washington (Intarasuwan 2018; Pace 2019a, 2019b; Byars 2017; Kashinsky 2019; Byrne 2019; Mass AG 2019; AP 2019; Graves 2020; Christian 2019; N.J. AG 2019; Byfield 2019; Warsmith 2019; Pa. AG 2019; R.I. AG 2019; R.I. AG 2020; HPM Digital Team 2018; Haynes 2019; Wash. AG 2018).

Several district attorneys have created dedicated units or subunits specifically for this function, including San Diego DA Summer Stephan in 2021; Queens (N.Y.) DA Melinda Katz and San Francisco DA Chesa Boudin in 2020; Philadelphia DA Larry Krasner in 2019; and more. (Christian 2020; S.D. DA 2021; S.F. DA 2020; Reyes 2019).

In Nassau County (N.Y.), the Labor Unit is located within the Rackets and Enterprise Crime Bureau (Nassau DA n.d.) and in Brooklyn (N.Y.) the Labor Fraud Unit is located within the Frauds Bureau. (Brooklyn DA n.d.). In the New York State AG’s office, the Labor Bureau has a dedicated criminal section (N.Y. AG n.d. ). Staff in these units include lawyers with labor law and/or criminal prosecution experience; some also have access to investigators and forensic auditors.

By creating a dedicated unit, DAs and AGs enable assigned lawyers to develop expertise in the subject matter and handling of these cases, which require a different approach than many other criminal cases. These cases often entail building relationships with worker organizations, conducting extensive interviews with workers who may be reluctant witnesses for a variety of reasons (including fear of retaliation or potential immigration consequences for themselves or family members), and thoroughly reviewing and auditing payroll and other employer records. Creation of a dedicated unit also allows for lawyers to build relationships with other government agencies (for example, state and local labor departments) and stakeholders (such as unions and other worker organizations) that are potential sources of cases. Finally, lawyers in a dedicated unit are able to develop legal expertise in the overlap between labor and criminal law, as well as knowledge regarding common violations and problematic industries. A dedicated unit also institutionalizes the work within an office, thus promoting the likely longevity of a DA’s office involvement in such prosecutions (Gerstein 2020). Professor Cesar Rosado Marzán examined the topic and specifically recommended specialized prosecutors for this work, given “the vulnerable nature of the workers who seek their aid” and potential immigration and other consequences that could result from nonspecialized prosecutors handling such cases (Rosado Marzán 2020).

Even without a dedicated unit, prosecutions of employer crimes can be added to existing divisions or bureaus, such as those handling economic or financial crimes. In Boulder, Colorado, for example, wage theft cases are handled within the Community Protection Division, which handles the office’s economic crimes cases. Indeed, offices without a dedicated unit have played a leadership role on this topic within their states. Within the last few years, Boulder County DA Michael Dougherty, along with the Colorado District Attorneys’ Council, co-hosted a training on prosecution of wage theft and human trafficking;6 he also played an instrumental role in promoting stronger anti-wage theft legislation in his state (Boyd 2019).

Similarly, Orange County (New YOrk) DA David Hoovler announced a new focus on labor crimes by his office, and held a training for fellow prosecutors on the topic (Yakin 2019; Mid Hudson News 2020). The Alameda (California) District Attorney’s Office started a labor trafficking task force in 2015 (H.E.A.T. Watch n.d.). The Westchester (New York) district attorney’s office has a multilingual hotline for the public to report a number of crimes typically affecting immigrants, including wage theft (Westchester DA 2021). The Manhattan District Attorney’s Office in 2017 used criminal forfeiture funds obtained through settlements with international banks to make grants to several organizations serving underserved communities, including over $1.5 million to the New York Committee for Occupational Safety and Health to provide outreach and training regarding wage theft, health and safety, and more (NY Cty. DA 2017).

In several jurisdictions, state attorneys general have used their criminal prosecution authority to pursue employers for wage theft and other crimes against workers (Gerstein 2020). In Rhode Island, for example, where the attorney general is the sole criminal prosecutor for the state, AG Peter Neronha proposed stronger anti-wage-theft and misclassification legislation during the 2021 legislative session; his office brought three wage theft criminal prosecutions in 2020, apparently the first ever brought within the state (R.I. AG 2021).

The increased involvement occurs in the context of high rates of violations of workplace laws and inadequate enforcement resources

Although violations of workplace law are widespread, resources to address such violations are grossly insufficient. Familiarity with this landscape—extensive, largely civil workplace violations with inadequate deterrence—helps one understand the scope of the enforcement chasm. The statistics below demonstrate the overall context in which employer crimes occur. Simply put, routine and widespread violations, inadequate enforcement resources, low union density, and other factors allow too many exploitative employers to operate with impunity. The statistics below do not suggest that all cases should be handled criminally, of course; criminal prosecutions should be reserved for the most serious violations and, of course, brought in situations in which intent and acts can be proven beyond a reasonable doubt.

• Wage theft. A 2017 study on minimum wage violations in the 10 most populous state found that each year, 2.4 million workers, or 17% of the low-wage workforce in these states, reported being paid less than the applicable minimum wage, losing an average of $3,300 per year (nearly a quarter of their earned wages) (Cooper and Kroeger 2017). State-specific studies of wage theft in Colorado, Iowa, New Mexico, New York, and Ohio have found similarly high rates of violations while examining a broader range of workplace infractions (Gordon et al. 2012; Schrank and Garrick 2013; Shields 2019; Sen 2016; Stiffler 2019). According to a 2020 Washington Center for Equitable Growth study, Black, Latinx, noncitizen, and women workers experience higher rates of wage theft (Fine et al. 2020).

• Workplace safety and health. The Occupational Safety and Health Act (OSH Act) was enacted in 1970 to ensure that workplaces are free of hazards that kill or injure workers. Even before the COVID-19 pandemic, workplace fatalities, many of them preventable, were common. In 2019, 5,333 workers were killed on the job, and hundreds of thousands experienced nonfatal injuries and illness (BLS-IFF 2019a and 2019b). A 2017 study by the National Employment Law Project reviewing U.S. Occupational Safety and Health Administration (OSHA) severe injury data from 29 states reported that 27 workers per day suffer amputation or hospitalization (Berkowitz 2017). As with the other workplace harms discussed in this report, there are racial disparities: the overall fatality rate of Black and Latino workers is higher than that of white workers (AFL-CIO 2020). Occupational safety and health risks and violations are even more stark in light of widespread workplace outbreaks during COVID-19.

• Misclassification and payroll fraud. A 2019 study of Washington state found that the proportion of employers that misclassify their workers as independent contractors (not including those who paid “off the books”) averaged 16% from 2013 to 2017 (Xu and Erlich 2019). An earlier analysis of state-level research found that between 10% and 20% of employers have misclassified at least one worker as an independent contractor, noting that employers who misclassify their workers avoid paying payroll taxes and workers’ compensation insurance, and often fail to comply with minimum wage and overtime pay requirements in the Fair Labor Standards Act (FLSA) (Carré
  2015). Misclassification is costly for workers, who lose significant money each year because of it (Shierholz 2020). Misclassification also costs the public. The Washington state study conservatively estimated that from 2013 to 2017, the state annually lost over $30 million in unemployment insurance taxes and more than $53 million in unpaid workers’ compensation premiums; losses are even greater when federal taxes are considered (Xu and Erlich 2019).Misclassification is a particularly acute problem in certain industries. A recent study found that in an average month of 2017, between 12.4% and 20.5% of the construction industry workforce nationwide was either misclassified as independent contractors or working “off the books,” and a report issued by the District of Columbia Attorney General’s Office found that construction contractors save between 17% and 40% by misclassifying workers (Ormiston, Belman, and Erlich 2020; D.C. AG 2019). Another study found extensive wage theft and misclassification in the construction industry in several midwestern states (Goodell and Manzo 2021).

• Workplace harassment, including sexual harassment. Data suggest that workplace harassment is extensive, despite federal, state, and often local equal employment opportunity (EEO) laws prohibiting employment discrimination (including harassment) on the basis of race, color, religion, sex, national origin, disability, age, and more. A 2016 report by the U.S. Equal Employment Opportunity Commission (EEOC)—the agency that enforces these laws at the federal level—noted that one-third of the approximately 90,000 charges the agency received in the prior year included allegations of workplace harassment. The report also suggested that harassment statistics of worker complaints likely seriously understate the extent of the problem, because “the least common response to harassment is to take some formal action—either to report the harassment internally or file a formal legal complaint” (Feldblum and Lipnic 2016). A number of surveys and reports, usually based in specific industries, have found extensive incidence of sexual harassment (ROC United and Forward Together 2014; Covert 2020; NASEM 2020; Chatterjee 2018). However, the U.S. Government Accountability Office in 2020 noted the scarcity of data on this issue and recommended further surveys (U.S. GAO 2020).

• Labor trafficking. Labor trafficking occurs when a person is compelled or coerced to provide labor or services, and often afflicts people who are vulnerable because of life circumstances and economic hardship (U.S. DOJ n.d.). The National Human Trafficking Hotline identified nearly 5,000 labor trafficking cases in 2019 based on its complaint line alone (NHTH 2019). Despite its frequency and severity, labor trafficking often goes undetected and is rarely prosecuted (Smith 2021).

• Employer retaliation against workers for exercising their rights. Although retaliation is illegal, employers commonly retaliate against workers for exercising their workplace rights. Illegal retaliation has been identified in a wide range of circumstances, including when workers report or file lawsuits challenging labor violations, and when workers join together to organize a union or engage in collective action (a right guaranteed under the National Labor Relations Act or NLRA). One study revealed that employers were charged with illegally firing workers or other retaliatory conduct (discipline, threats) in one-fifth to nearly one-third of union elections (McNicholas et al. 2019). A seminal 2009 study of working conditions in three major cities found that of workers who had complained to their employers about violations or tried to form a union in the prior year, 43% experienced retaliation (Bernhardt, Milkman, and Theodore 2009). In workplaces or communities with undocumented workers, a common form of retaliation for asserting workplace rights involves threats or acts related to immigration status. In many cases, laws are insufficient to adequately address or deter forms of employer retaliation (Huizar 2019; Rhinehart and McNicholas 2021).

Several factors play a role in enabling these widespread violations:

• Federal and state enforcement resources are inadequate. The shortcomings in enforcement occur at all levels, starting at the top. Federal resources for the enforcement of worker protections have declined while the U.S. workforce has grown. The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces federal wage and hour laws. In 1978, WHD had one investigator for approximately every 69,000 workers; by 2018, that figure was one investigator per 175,000 workers. In many states, the federal WHD may be the primary or only government agency enforcing wage and hour laws (Costa, Martin, and Rutledge 2020). Similarly, in 1978, OSHA—the federal agency charged with protecting and enforcing workers’ rights to a safe workplace—had one compliance officer for approximately every 60,000 workers; by 2018 that number had almost tripled to nearly 180,000 (Hamaji et al. 2019).7 Meanwhile, at the state level, in 2018, seven states had no investigators at all whose responsibilities included enforcement of minimum wage and overtime laws, while most states had fewer than 10 on staff (Levine 2018). In addition to the low frequency with which penalties are imposed on violators as a result of inadequate resources, the amounts employers must pay are frequently modest, often limited to paying back what they should have paid in the first place. In addition, back wages and penalties are also often difficult to collect, even by civil labor enforcement agencies (Cho, Koonse, and Mischel 2013).

• Low union density leaves workers unprotected. Unions have traditionally helped ensure compliance with workplace laws, by serving as an on-site monitor in unionized workplaces, and by creating pressure on nonunionized workplaces to improve conditions (in order to compete for employees). However, as a result of several factors, including unfavorable federal labor laws and common employer retaliation for organizing, union density (meaning union membership as a share of employment) has diminished greatly over the past several decades (Rhinehart, Windham, and Mishel 2020). The national union membership rate of private-sector workers was only 6.3% in 2020 (BLS-CPS 2021).

• Forced arbitration blocks an increasing number of workers from suing in court, and hides misconduct from public view. Historically, attorneys in the private bar and public interest organizations have played a significant role in addressing wage theft, discrimination, and other workplace violations. As experts have noted, often underfunded public enforcement agencies are unable to address all violations of workers’ rights in the workplace. That is why the ability of workers to take their employers to court—and join together in doing so—to fight wage theft, discrimination, harassment, and other violations has been crucial to enforcing workplace protections (Hamaji et al 2019). However, private attorneys are increasingly unable to address workplace protections. As of 2017, more than half (56.2%) of all private-sector nonunion employees were required by their employer, as a condition of employment, to sign a forced arbitration agreement (Colvin 2018). Under these agreements, workers waive their right to take their employer to court and consent instead to resolving disputes in private arbitration—a secretive process heavily tilted toward the employer. These agreements often include class- and collective-action waivers, under which employees give up their right to sue on a collective basis. In 2017, 41.1% of private-sector nonunion employees covered by mandatory arbitration procedures were also subject to class action waivers (Colvin 2018). The share of private-sector nonunion workers blocked from going to court by forced arbitration clauses with class- and collective-action waivers is projected to exceed 80% by 2024. (Hamaji et al. 2019). Workers win less often in forced arbitration than in court, and when they do win in arbitration, they win less money than in court (Stone and Colvin 2015). Importantly, when workers are required to give up their right to bring a class action, it becomes extremely difficult for them to find a private attorney to bring their case, since bringing a solo arbitration case eliminates the economies of scale that make wage theft and discrimination cases economically feasible for private lawyers. Most often, when there are forced arbitration and class waiver provisions, workers never bring cases at all: one scholar estimated that hundreds of thousands of claims are not even brought each year because workers are subject to forced arbitration and never file cases; she referred to the “black hole” of forced arbitration (Estlund 2018). The secrecy of arbitration proceedings also allows violations to persist unabated, by preventing wrongdoing from coming to light as would occur in a court case.

• The growth of the “fissured workplace” leads to increased violations and creates challenges for effective enforcement. The “fissured workplace” refers to companies that subcontract, use temporary agencies, use a franchise model, or otherwise use business models in which they avoid bearing the legal responsibilities of an employer (Weil 2014). According to Weil, growth of fissured workplaces over the past several decades contributes to workplace law violations. Lower-level contractors are often less capitalized and may exist within the underground economy. Also, mid-level firms, such as temp agencies, must make a profit themselves, leaving smaller margins and pressure to cut corners to make a profit by paying less money to workers at the bottom level. In addition, effective enforcement of minimum wage requirements, overtime pay obligations, and other workplace standards is often more difficult in a fissured workplace, because it can be difficult for enforcers to impose liability on higher-level “up-chain” entities that drive working conditions and have the ability to bring about lasting compliance.8

The rationale for prosecution of wage theft and other employer crimes against workers is sound

Several reasons have been offered to support the position that violations of workers’ rights are an appropriate subject for criminal prosecution.

Employer crimes against workers cause significant harm

Although wage theft and other crimes against workers are—like most white collar and property crimes—typically nonviolent, they nonetheless cause significant harm to workers, to honest employers, and to neighborhoods and communities. The amount of money denied to workers because of wage theft dwarfs the amount stolen through many other forms of theft: One study found that in 2012, the total value of property taken in robberies reported to police across the United States was $341 million, compared with $933 million in wages recovered for known victims of wage theft. (Meixell and Eisenbrey 2014). Note that the wage theft figure includes actually recovered back wages, which is likely a significant undercount, given underreporting of wage theft for various reasons.

• Persistent wage theft impacts workers, their families, and neighborhood businesses (since underpaid workers have less money to spend), and it can affect the economic stability of neighborhoods and communities. As the cases in Section 3 demonstrate, employers’ crimes in wage theft or workplace safety cases often impact numerous victims. Moreover, given the social determinants of health, some public health experts have noted that wage theft may exacerbate adverse health impacts of low wages and low-income status by generating income insecurity. Individuals not paid for hours worked, or paid less than what they earned, may not reliably be able to pay rent or heating, buy groceries, or access transit. This in turn may result in increased crowding or homelessness, hunger, decreased mobility, and decreased ability to pay for child care or medical care—all having an adverse impact on health. Wage theft may also increase the number of hours or jobs worked, which may in turn decrease time spent with family, leisure time for physical activity, and sleep or rest (Minkler et al. 2014).
• Workers who are sexually harassed or assaulted in the workplace experience serious effects, including harm to mental and physical health, reduced opportunities for on-the-job learning and advancement, forced job change, unemployment, and abandonment of careers. Sexual harassment and assault in the workplace also harm employers, causing absences, turnover, reduced productivity, and litigation (Shaw, Hegewisch, and Hess 2018).
• Other crimes, like human trafficking and workplace fatalities, have clear and devastating lifelong impacts on victims and their families.
• Wage theft, payroll fraud, and related crimes also harm lawful businesses that comply with the law, since they must operate at a disadvantage relative to competitors that save money through breaking the law. When a business offers lower prices because it underpays employees, or when a company wins a contract because it cheats on unemployment insurance and other taxes, these acts create unfair competition for law-abiding employers (D.C. AG 2019). Widespread unaddressed violations by employers and corporations also undermine respect for the rule of law.
• Employer crimes harm the general public. Employers who evade unemployment insurance taxes deprive the system of resources needed to provide this critical safety net; those who lie in relation to their workers’ compensation insurance burden public health care resources and increase insurance costs for all employers. In addition, given that very low wages in certain sectors require full-time workers to rely on government assistance to survive (Cooper 2016), persistent underpayment of workers’ wages likely exacerbates reliance on public benefit programs.

The crimes are intentional

As many of the case examples provided in Section 3 demonstrate, crimes against workers generally result from conscious decision-making. Creating false payroll records; underreporting workers on unemployment insurance or workers’ compensation documents; shaving employee work hours or stealing tips; retaliating against employees who speak up when their rights are violated; paying no wages for an entire month or longer; assaulting minors or undocumented women workers; and eschewing critical and obvious workplace safety requirements are not inadvertent mistakes. Some employers are repeat violators (N.Y. AG 2014a). In addition, employer crimes often occur in clusters: The same employer who fails to pay workers is also evading UI and other taxes and violating workers’ compensation laws (Piore and Schrank 2018, 37–39). The Colorado legislature, in a recent statute targeting labor trafficking and wage theft, noted, “Persons who commit the crime of human trafficking often commit other crimes such as wage theft, tax evasion, and workers’ compensation fraud, which drains local and state resources, as well as denies the state its right to revenue.”9 Further, certain predatory employers specifically take advantage of young people, immigrants, or other particularly vulnerable worker populations.

Criminal prosecution of employer crimes against workers is likely to deter similar violations by other employers

Inefficacies in and weaknesses of our regulatory systems have been cited as necessitating criminal prosecutions against companies for workplace and other abuses (Steinzor 2015, 15–39). As described in Section 2B, civil labor enforcement agency resources are inadequate, limiting their effectiveness. DA involvement could have a particularly decisive effect in jurisdictions where state labor department enforcement is minimal or nonexistent. Elsewhere, too, criminal prosecutions are likely to have a significant deterrent impact on employer misconduct.

Prosecution of an employer can result in specific deterrence, meaning prevention of violations by the prosecuted employer through, for example, a plea agreement requiring ongoing compliance as a condition of probation or incorporating independent monitoring. While it requires further study (see Section 5 below), criminal prosecution of employers also appears likely to have a meaningful general deterrent impact on exploitative business models that treat civil enforcement as unlikely to occur and civil penalties as a modest “cost of doing business.”

Noncompliance with wage and hour laws (for example) has been described as a “rational” profit-maximizing decision made by unethical employers in response to low enforcement rates and deficient penalties. Scholars who have analyzed employer costs and benefits of noncompliance find that “employers will not comply with the law if the expected penalties are small either because it is easy to escape detection or because assessed penalties are small” (Ashenfelter and Smith 1979). Currently, as described in Section 2B, the likelihood of detection is low. The cost of detection is generally modest: Civil enforcement frequently recovers only back wages owed to employees, essentially converting workers’ wages into an interest-free loan to the employer. In this context, criminal prosecution could change an employer’s equation, by increasing the likelihood of detection through adding a visible and powerful new enforcer to the picture, as well as increasing the cost of detection (in the form of individual financial, reputational, and other costs). Media coverage of criminal prosecutions should also increase the perceived likelihood and cost of detection. Such publicity serves an additional deterrent purpose: A recent study showed that press releases about OSHA enforcement of workplace safety violations deterred other workplace safety violations (Johnson 2020), a conclusion likely applicable to other aspects of workplace compliance as well.

Prosecutions related to workplace conduct already routinely occur, indicating that workplace matters are not currently treated as solely civil in nature

Prosecutors routinely bring charges against employees who embezzle or otherwise steal from their employers. In addition, many prosecutors routinely pursue claimants who have fraudulently received workers’ compensation or unemployment insurance benefits.10 Given that the criminal justice system already addresses workplace matters when employers are harmed, it is appropriate to use the same jurisdiction and power when workers are harmed. Fairness in administration of justice would seem to require examination of employer misconduct, perhaps particularly urgently so during a time when workers deemed essential often experience serious workplace dangers and violations of law. (Rosenthal 2021). Moreover, fraud or wage theft by one employer will often cause a greater magnitude of harm than fraud perpetrated by an individual worker; for example, one employer that evades UI taxes year after year will generally cheat the UI program of significantly more money than one individual fraudulent UI claimant. In addition, criminal prosecution of a single employer who is a serial violator is likely to result in justice for many workers, past and future.

More resources are needed to enforce workplace protections

It is insufficient to rely on civil enforcement agencies or workers themselves to enforce labor standards protections on their own. Public enforcement resources dedicated to civil enforcement agencies are too limited, and there are too many impediments to private enforcement, including forced arbitration and workers’ realistic fears of retaliation. Such challenges are more acute in cases involving particularly egregious employer conduct, where fraudulent behaviors may impede or prevent civil enforcement agencies from readily identifying violations. Dedicating criminal enforcement resources to enforcing workplace protections would fill a significant currently unmet need.

Prosecution of employers for crimes against workers is consistent with a reform-oriented approach to criminal justice

Along with a number of more traditional prosecutors, several prosecutors associated with the “progressive prosecutor” movement have taken on this work, and they have articulated how they believe it fits within a criminal justice reform framework.11 For example, Philadelphia District Attorney Larry Krasner and San Francisco District Attorney Chesa Boudin both appointed labor liaisons within their offices for this purpose, and Minnesota Attorney General Keith Ellison created a Wage Theft Unit. These officials have cited the power employers wield over workers, and the vulnerability of workers, as a basis for committing to these prosecutions (Reyes 2019; S.F. DA 2020; Minn. AG 2019). Attorney General Ellison and Boulder County District Attorney Michael Dougherty both noted the inequity of pursuing other kinds of theft but not wage theft (Minn. AG 2019, Boyd 2019). Moreover, prosecuting extreme employer abuses aligns with the work of advocates and worker organizations on the ground (CTUL 2019; Svoboda 2011; Colorado General Assembly 2019). Relationships between prosecutors and organizations that are accountable to workers can also help the criminal justice system become more accountable to marginalized communities more broadly. As Professor César Rosado Marzán has noted, “The value of criminalization lies in its unambiguous moral condemnation of wage theft, in its capacity to shame employers who abuse their power, and in the real threat of imprisonment. Criminalization will help activists to co-enforce wage and hours laws, likely deter wage theft, and better resolve a dire problem affecting some of the most powerless individuals in U.S. society” (Rosado Marzán 2020). Prosecution of wage theft also involves reorienting enforcement resources “toward aggressive enforcement of the predations of powerful economic entities” (Bhargava and Hertel-Fernandez 2020).

Case types and examples cover a range of worker abuses and span the country

Prosecutors have brought charges to address numerous different types of employer crimes against workers. The following are descriptions and examples of some common types of cases, pulled primarily from publicly available news media articles and agency communications.12 Often, infractions occur in clusters: the same employer commits wage theft and evades UI taxes, commits workers’ compensation insurance fraud, has unsafe working conditions, and retaliates against workers who complain about any of these problems. The discussion below is organized by violation type in the interest of clarity, but many cases involve multiple violations. In addition to the discussion below, Appendix A contains links to a number of court-filed documents such as indictments, plea agreements, and more. Appendix B links to resources including a database and spreadsheet containing information and news reports of additional cases.

Prosecutors have used various statutes and charges to pursue wage theft

Wage theft takes many forms but essentially involves not paying workers what they are owed, whether it is for hours worked, or at levels required under the statutes that govern required minimum wages and overtime pay.13 Employers may avoid paying a worker for all hours worked, or avoid paying overtime, through a variety of methods: altering time cards, maintaining two sets of payroll records (one real and one false), or requiring people to work before clocking in or after clocking out. Some employers pay workers in cash, to avoid creating a record of underpayments (as well as to avoid paying unemployment insurance taxes and workers’ compensation premiums). In certain instances, including in the restaurant, construction, and home health care industries, prosecuted employers have failed to pay any wages at all for a period of time, including up to one or two months. There have been cases of employers taking permissible deductions from workers’ pay for health insurance, union dues, or other benefits—but then simply keeping the money for themselves. While the majority of wage underpayment situations that are reported are handled by the civil legal system, a growing number of prosecutors have brought criminal charges in appropriate situations.

DAs and AGs bring criminal prosecutions under state laws. The relevant state statutes, and therefore the charges brought in these cases, vary. Some state statutes explicitly address workplace conduct and may even use the term “wage theft.” Other prosecutors have brought these cases using theft of services, theft by swindle, larceny, scheme to defraud, or similar statutes. Prosecution of wage theft, prevailing wage and payroll fraud cases typically requires not only witness testimony, but also audits of employer documents—evidence similar to that needed to pursue other types of economic crimes.

Sample wage theft cases

• Nonpayment of overtime. In 2021, the Santa Clara County Office of the District Attorney brought charges against a flooring company owner who was accused of owing workers nearly $1 million of overtime wages, and also accused of workers’ compensation premium fraud (Green 2021).
• Keeping payroll deductions intended for specific purposes. In 2021, the Worker Protection Unit of the Philadelphia Office of the District Attorney charged a plumbing company’s owner with multiple counts of theft for deducting union dues from workers’ pay and keeping the money instead of remitting the dues to the union as required (Phil. DA 2021). In a similar case, Michigan’s attorney general brought criminal charges against an employer who allegedly withheld more than $52,000 from workers’ paychecks for deferred retirement contributions but failed to deposit the funds into their accounts or pay the employer match (Mich. AG 2019).
• Failing to pay wages. In 2020, Colorado’s 5th Judicial District Attorney’s Office charged a contractor with tax evasion and theft from a person; the contractor ultimately pleaded guilty to one count of each. The investigation, which began in late 2019, was conducted by the DA’s office in collaboration with the Colorado Department of Revenue Criminal Tax Enforcement Division after past employees of the defendant complained about not having been paid (Colo. 5th DA 2020, Lotshaw 2021).
• Writing bad checks to undocumented workers. In 2019, Colorado’s 20th Judicial District Attorney’s Office (in Boulder County) brought charges against an employer accused of giving undocumented workers bad checks for various projects and threatening to report them to immigration when they asked for payment (Byars 2019a, 2019b). The employer was sentenced to four years of probation and ordered to pay restitution (Oravetz 2019).
• Failing to pay for work performed. In 2018, the Harris County (Texas) district attorney charged the owner of a high-value home with theft of service for failing to pay a painter for repair work completed after a hurricane (McPherson 2018).
• Wage theft of elder care employees. Numerous DAs in California have brought charges against elder care homes for wage theft, tax fraud, and other criminal violations (Gartrell 2016).
• Not paying wages to immigrant workers. In 2016, the San Diego district attorney, partnering with the California labor commissioner, secured a criminal jury trial conviction for felony grand wage theft by false pretenses. A San Diego restaurant owner was sentenced in 2016 to two years in jail for paying immigrant workers only in tips. The San Diego County Superior Court also ordered the employer to repay $20,000 in stolen wages and tips to six of the restaurant workers (CSLEA 2016).
• Failing to pay overtime and other wages. The New York attorney general’s office has brought wage theft-related cases in several industries. For example, in 2015, the office charged a Papa John’s franchisee who was accused of continuing to underpay workers even after being investigated for wage theft by the U.S. Department of Labor. The charges included creating fictitious worker names to conceal overtime hours worked and filing fraudulent quarterly state tax returns. The employer pleaded guilty to failure to pay wages and falsifying business records (NY AG 2015a, 2015b). In 2012, the New York AG’s office announced a guilty plea by the owner of a home health agency in a case that involved failing to pay workers $300,000 in wages (NY AG 2012b).

Crimes related to prevailing wage laws involve cheating employees, government agencies, and the public

Prevailing wage laws require contractors on government-funded public works projects (typically government construction contracts) to pay their workers at least the locally prevailing wages and fringe benefits paid on similar projects in the area (Mahalia 2008). In addition to the federal prevailing wage law (the Davis-Bacon Act of 1931), many states have enacted state-level prevailing wage laws. Prevailing wages are set based on a worker’s location and occupation, and they are often considerably higher than the applicable minimum wage in a given jurisdiction. To allow government contracting agencies to ensure compliance, prevailing wage laws generally require public contractors to routinely submit “certified payroll records” of hours worked and wages and benefits paid on a given contract. When employers violate these laws, they are not only underpaying workers, but also cheating the government agency and taxpayers, since the agency awarded the contract based on the premise that workers would be paid prevailing wages. As a method of violating prevailing wage laws, employers may, for example, create and submit false certified payroll records that fraudulently demonstrate compliance by showing artificially inflated pay amounts, artificially deflated hours, or even listing as employees individuals who were not on the job at all.

Some prevailing wage laws directly include criminal sanctions for violations. Violations such as submitting false payroll records may also result in other charges, such as filing a false instrument or maintaining false business records.

Sample prevailing wage cases

• Cheating on fringe benefit requirements. In 2021, the Pennsylvania attorney general’s office charged a contractor with extensive and complex violations of prevailing wage laws in what the AG described as “the largest prevailing wage criminal case on record.” The contractor was charged with appropriating retirement benefits owed under the law, and falsely inflating the amount of money paid for health benefits in order to pay workers less. These charges came on the heels of another separate criminal prevailing wage case by the Pennsylvania AG’s office that resulted in a guilty plea. (Pa. AG 2021, Rushton 2021).
• Failing to pay required prevailing wages. In 2020, the Queens (New York) district attorney announced the guilty plea to a prevailing wage labor law violation by a contractor for the New York City School Construction Authority and the New York City Department of Education, who “pocketed more than $1.5 million that should have gone to employees.” (Queens DA 2020).
• Falsifying records and underpaying workers. In 2019, New Jersey’s attorney general announced the guilty plea of a construction contractor for falsifying payroll records to conceal his underpayment, and in some cases nonpayment, of wages to workers, many of whom were immigrants (N.J. AG 2019).
• Underpayment, falsifying records, and demanding kickbacks of money back from workers. In 2013, New York’s attorney general charged a contractor for the Port Authority with prevailing wage violations. The contractor, who ultimately pleaded guilty to grand larceny and prevailing wage violations, created false business records demonstrating compliance with the law and issued checks to workers which would demonstrate compliance; he then made his workers cash the checks at his bank and kick back, or return, most of the cash to him. Under the plea agreement, the contractor was sentenced to five years of probation, was banned for five years from working on public projects in New York, and was ordered to pay $200,000 in restitution to workers (N.Y. AG 2013, 2014b).

Payroll fraud cases include worker misclassification, workers’ compensation fraud, and nonpayment of unemployment insurance taxes

Numerous employers have been criminally prosecuted for payroll fraud, including crimes resulting from misclassifying workers as independent contractors, or from paying workers in unreported cash “off the books.” In such cases, employers often falsely underreport the number of workers on unemployment insurance (UI) tax returns filed with the state or on workers’ compensation insurance applications. These actions can lead to charges of filing a false document or maintaining false business records, or specific workers’ compensation- or insurance-related charges. Additional charges may stem from an employer’s failure to pay UI taxes or to procure required workers’ compensation insurance, acts which themselves have criminal consequences in some states. In addition, as noted above, often employers committing these offenses engage in wage theft as well.

Sample payroll fraud cases

• Underreporting employees on workers’ compensation forms. In 2020, the Hennepin County Attorney (Minnesota) won convictions against the owners of a drywall company for insurance fraud and theft by swindle, based on allegations that the company underreported employees on workers’ compensation documents and wrongly treated workers as independent contractors. As part of a guilty plea, both owners of the Minnesota drywall company received five years of probation, 180 days of home monitoring, and 30 days of community service, along with a $30,000 fine and an order to pay $309,000 in restitution (Hennepin CA 2020a, 2020b).
• Failure to pay wages, UI taxes, and workers’ compensation insurance. In 2020, the Suffolk County (New York) DA’s office announced that eight people and nine businesses had been charged in a labor-related crackdown in Suffolk County. The alleged crimes collectively involved the theft of more than $250,000 in employees’ wages and benefits, nonpayment of more than $58,000 to the New York State Department of Labor for unemployment insurance fund contributions, and failure to pay more than $133,000 to the state insurance fund for workers’ compensation insurance premiums (Suffolk Cty. DA 2020b).
• Wage theft and workers’ compensation insurance crimes, related in part to underreporting payroll. In 2020, the Rhode Island attorney general brought charges against the former owner of a cleaning company (a contractor for the Community College of Rhode Island) for wage theft, failure to maintain workers’ compensation insurance coverage, and workers’ compensation insurance premium fraud. Among other things, the defendant allegedly falsely reported only $10,000 of payroll, instead of almost $400,000, lowering business expenses and gaining a competitive advantage in bidding (R.I. AG 2020).
• Workers’ compensation insurance fraud. In 2019, the Stanislaus County (California) DA’s office announced that a former temp agency owner had been convicted of workers’ compensation insurance premium fraud and ordered to pay close to $1 million in restitution. An insurance audit revealed that the agency owner had underreported payroll and the number of employees to obtain a lower premium (CSLEA 2019).
• Misclassifying workers to avoid paying overtime and UI taxes. In 2018, the New York state attorney general obtained guilty pleas (to grand larceny and falsifying business records) from three construction companies that had misclassified their workers as independent contractors to avoid paying overtime and unemployment insurance taxes (N.Y. AG 2018).

• Hiding the existence of workers to avoid workers’ compensation costs and payroll taxes. In 2017, the San Diego district attorney obtained a guilty plea from a married couple accused hiding the existence of at least 800 housekeeping and janitorial workers to avoid paying millions in workers’ compensation insurance rates and payroll taxes (Littlefield 2017).

Workplace safety and health cases target highly predictable, avoidable, and sometimes fatal workplace hazards

While most violations of workplace safety and health laws are addressed through civil enforcement by OSHA or an OSHA-approved state plan (U.S. DOL-OSHA n.d.a, n.d.b), prosecutors have brought various charges in several cases of highly predictable, easily avoidable workplace fatalities or serious injuries, such as unsecured roofers who fell to their deaths or workers killed when trenches that had not been shored up collapsed. State exercise of traditional police powers, such as criminal prosecutions of such cases, is generally not preempted by the OSH Act (Flanagan, Gerstein, and Smith 2020). Charges have included workplace or involuntary manslaughter, criminally negligent homicide, reckless endangerment, and assault. There is long-standing precedent for prosecution in this area; for example, in the 1980s, a program was established in Los Angeles involving collaboration between the district attorney and the state OSHA plan (McCluskey et al. 2016).

Sample workplace safety and health cases

• Roofing fatalities. In 2019, the Office of the Maine Attorney General charged a contractor with workplace manslaughter when a roofing worker without required protection against falls fell to his death (Flaherty 2019). In a similar case that year, the prosecutor from Summit County, Ohio, obtained an involuntary manslaughter guilty plea from a contractor in a roofing fatality case (Warsmith 2019).

• Trench collapses. Several employers have been prosecuted following workplace fatalities resulting from trench collapses, including in Boston; Brooklyn, New York; Fairfax County, Virginia; Granby, Colorado; Manhattan, New York; and Seattle. In all cases, the employers were charged with manslaughter, except in the Seattle case; there the charge was criminal negligence (NBC10 Boston 2019; Brooklyn DA 2019; Haynes 2019; Pace 2019a, 2019b; Chen 2016; Green 2016)
• Forklift fatality. In 2018, the San Francisco district attorney brought involuntary manslaughter charges against the employer of a worker crushed to death by a forklift; the victim was assigned to use the forklift, despite not being certified to do so, and a ramp at the worksite lacked a required curb to prevent the forklift from falling (Sernoffsky 2018).
• Crane-related injuries. In 2018, the Manhattan district attorney brought assault charges against a contractor on a construction site where two workers were gravely injured by the fall of a mini crane (NY Cty. DA 2018).
• Child labor. In the last decade, child labor charges were brought in two New York cases, both involving teenagers assigned to operate machinery prohibited at their age. A 14-year-old was killed on the job at a farm (Harris 2014; N.Y. AG 2019) and a 17-year-old’s arm was severed at a restaurant (N.Y. AG 2014c). Both employers pleaded guilty.

Labor trafficking cases involve extreme worker exploitation

Labor trafficking occurs when a person uses force, fraud, or coercion to obtain labor or services of another person (U.S. Department of State 2021). State statutes defining labor trafficking vary in their precise language, and some encompass a wider range of conduct than federal trafficking statutes (NCSL 2018). Although labor trafficking has been less commonly prosecuted than sex trafficking (Smith 2021), state or local criminal prosecutors have brought labor trafficking charges in a few notable cases. In some instances, a focus on trafficking has served as a pathway for prosecutors’ offices to get involved in broader worker exploitation issues.14

Sample labor trafficking cases

• Paying grossly subminimum wages and threatening workers. In 2020, the Suffolk County (New York) district attorney arrested a gas station owner for several charges, including labor trafficking, scheme to defraud, grand larceny, and retaliation. The employer was accused of paying grossly subminimum wages and no overtime for workweeks of 70 to 100 hours; he was also alleged to have threatened to file false police reports or call immigration authorities regarding any employees who complained about working conditions or cooperated in state labor department investigations. The case was referred to the DA’s office by the New York State Department of Labor (Suffolk Cty. DA 2020a).
• Coercing, underpaying, and threatening undocumented workers in unsafe conditions. In 2019, a contractor in the Twin Cities, Minnesota, region was sentenced to 270 days in jail and five years of probation for labor trafficking and insurance fraud, after pleading guilty on the eve of trial in a case brought by the Hennepin County Attorney. According to the criminal complaint, the contractor recruited workers for construction work, knowing that they were undocumented, and used that leverage to force them to work long hours at low pay and without adequate safety protection, allegedly also telling workers they would be fired and deported if they went to a doctor for injuries suffered on the job (Hennepin CA 2019, 2020c). The investigation was conducted by a state law enforcement agency after reports were made to the Hennepin County Attorney’s Office by a trade union and a local workers’ rights organization, Centro de Trabajadores Unidos en la Lucha (CTUL) (Feshir 2019).

• Underpaying, keeping passport, and threatening immigrant cleaning worker with deportation. In 2018, the Massachusetts attorney general’s office charged an employer with labor trafficking, among other offenses, in a case in which the defendant was accused of recruiting a worker from abroad and requiring her to perform cleaning work, for which she was paid subminimum wages; he allegedly retained the worker’s passport and threatened that if she tried to return to her home country of origin, she would be arrested by immigration authorities (Mass. AG 2018).
• Subjecting care workers to brutal conditions. In 2018, the California attorney general’s office brought human trafficking and other charges against four individuals who ran an adult residential and child care company. The complaint alleged that workers were forced to work around the clock, seven days a week, and sleep on floors and in garages, and that defendants also confiscated some workers’ passports and threatened to report workers to immigration authorities (Calif. AG 2018).
• Taking visas and passports from farmworkers and threatening harm. In 2018, a jury in Fresno County, California, found an individual guilty of human trafficking and extortion in relation to farmworkers. The defendant was accused of taking victims’ visas and passports, and of threatening to harm them and report them to immigration if they stopped working for him (Lopez 2018a, 2018b).

Sexual assault cases target extreme harms of harassment

The #MeToo movement, which gained momentum in 2017, has led to an increase in awareness and exposure of workplace sexual harassment. In certain instances, this conduct has risen to a level resulting in assault and even rape charges.15

Sample workplace sexual assault cases case summaries

• In a nationally high-profile case, the Manhattan DA office brought criminal charges against former Hollywood producer Harvey Weinstein, who in 2020 was found guilty of criminal sexual assault and rape, and sentenced to 23 years in prison (Ransom 2020a, 2020b).
• The owner of a Boulder, Colorado, ice cream company pleaded guilty to two counts of misdemeanor unlawful sexual conduct based on allegations that he sexually abused female employees, including two undocumented immigrants. In 2018, he was sentenced to six months in the Boulder County Jail followed by a year of work release, among other conditions of probation (Bear 2018).
• The owner of the country’s last Howard Johnson’s restaurant (located in Lake George, New York) was sentenced to six months in jail and six years’ probation  after being charged in 2017 with sexual abuse, unlawful imprisonment, and endangering the welfare of a child based on allegations that he sexually harassed about 15 female employees, including minors (AP 2017, 2018).

Retaliation and witness intimidation cases target actions that hamper investigations

Retaliation against workers who report violations can consist of termination, demotion, pay reduction, assignment to less desirable schedule or job assignment, threats of any kind (including calling immigration), or advising other employers not to hire a person. Retaliation is particularly harmful because of its potential to deter other workers from reporting violations or cooperating with an investigation. In some cases pursued by prosecutors, employers pressured workers to withdraw complaints or provide inaccurate testimony in wage-related proceedings. Other cases involved retaliation or conduct similar to witness tampering.

Sample retaliation and witness intimidation cases

• Retaliating against gas station workers who reported violations. In 2020, the Suffolk County (New York) District Attorney charged a gas station owner with, among other things, retaliation against workers who reported violations (Suffolk Cty. DA 2020a). (This case is also described in the labor trafficking case section above) (Suffolk Cty. DA 2020a).
• Intimidating laundry temp workers serving as witnesses in a wage theft case. In 2019, the Massachusetts attorney general’s office announced guilty pleas of owners of a temp agency for, among other things, witness intimidation and retaliation against workers placed at an industrial laundry facility. Workers placed by the temp agency in the warehouse were paid subminimum wages and no overtime for workweeks of 60 to 70 hours. The temp company owners were accused of threatening to terminate witnesses cooperating with the AG’s investigation, directing employees not to cooperate with investigators, and reducing the hours of workers who spoke with investigators during an on-site inspection. The investigation began when a local branch of the United Food and Commercial Workers International Union contacted the AG’s office (Mass. AG 2019).
• Dissuading witnesses of crimes related to a state construction subcontract. In 2014, the Orange County, California, district attorney’s office obtained a guilty plea from a construction subcontractor for taking workers’ wages on a public work project and dissuading witnesses from prosecuting a crime. Hired by the general contractor refurbishing a state hospital, the subcontractor required workers to turn over a portion of their paychecks to him. When workers contacted the DA’s office about their wages, leading to an investigation, the subcontractor invited workers to his house to receive their final paychecks, but instead attempted to dissuade them from acting as witnesses against him (Dobruck 2014).
• Witness tampering. In 2012, the New York attorney general’s office brought witness tampering charges against a garment factory owner accused of instructing a former employee to falsely testify that her work tenure was shorter than it was. The case was referred to the AG’s office by staff from the New York State Department of Labor and Industrial Board of Appeals (administrative hearing body) when they learned of the tampering before a hearing (N.Y. AG 2012a).
• Intimidating immigrant car wash workers. In 2010, the Los Angeles city attorney obtained a protective order against two car wash owners after they made immigration-related threats to workers amid an ongoing wage theft case. The protective order directed the employers not to “harass, intimidate or retaliate” against workers, and also not to “attempt to prevent or discourage any employee or named victim…from participating or cooperating” in the investigation, prosecution, or enforcement of the case (CA Superior Court 2010).

Past prosecutions of crimes against workers provide some guidance on common questions about bringing such cases

Although providing prosecutors with a road map on how to bring such cases is beyond the scope of this report,16 past prosecutions provide some initial guidance regarding several common questions:

• What statutes may be used to bring such cases?
• How can prosecutors learn about cases? What sources of potential referrals exist?
• How can prosecutors engage in this work in a manner that responds to racial equity, social justice, and similar concerns?
• What funding sources may be available to support this work?

A range of applicable statutes can provide prosecutors with authority to take on various workplace-related crimes

In some states, there may be labor or wage-specific criminal provisions. But as noted in the case studies section, many prosecutors have brought workplace-related crimes cases using a variety of generally applicable state statutes. Often, prosecutors may be able to use existing law to bring such cases, including statutes addressing the following conduct:

• Theft (including theft of services or theft by swindle)
• Larceny
• Scheme to defraud
• Check fraud or passing bad checks
• Filing false documents with government agencies
• Creating and maintaining false business records to conceal wage theft and other violations
• Witness tampering and retaliation
• Insurance fraud
• Unlawful activity related to unemployment insurance, workers’ compensation, and prevailing wage requirements
• Manslaughter and homicide
• Labor trafficking
• Criminal sexual assault
• Endangering the welfare of a minor
• Child labor

Examples of state statutes governing workplace crimes

Some states, such as New York, have relatively long-standing statutes specifically addressing workplace-related employer crimes. Other states, such as Colorado, Minnesota, and Texas, have passed specific statutes on wage theft in recent years. Colorado and Minnesota passed laws that would define wage theft beyond a certain monetary threshold as a felony. This designation makes such cases more appealing to prosecutors for various reasons, including that it affords them more options in plea bargaining situations. Also, in some states, such as California, prosecutors have a more robust set of tools to address felonies (as compared with misdemeanors), including search warrants and use of a grand jury.

• New York. Under New York Workers’ Compensation Law § 52(1)(a), failure to secure workers’ compensation for more than five employees is a Class E felony; under Labor Law 220(3)(d)(i), willful failure to pay prevailing wages totaling more than $25,000 is a Class E felony (with higher level felonies for larger underpayments).
• Colorado. Legislation passed in 2019 explicitly included within its statutory definition of theft an employer who “being able to pay wages or compensation and being under a duty to pay, willfully refuses to pay wages or compensation.” In Colorado, theft is a felony if the dollar amount involved is at least $2,000.
• Texas. In 2011, Texas enacted a wage theft law specifying that within the existing “theft of services” law, partial payment of wages is not sufficient to negate the intent to avoid payment by an actor (in this case, an employer). (Contemporaneous news articles noted that this was a common employer defense, see for example McPherson 2011.) Tex. Penal Code Section 31.04(d-3)(1, 2)(1994).
• Minnesota. Minnesota’s theft statute includes “wage theft” as a type of theft, and defines the term “wage theft” as occurring, among other things, “when an employer with intent to defraud: (i) fails to pay an employee all wages, salary, gratuities, earnings, or commissions at the employee’s rate or rates of pay or at the rate or rates required by law.” MN Statutes 2020 Section 609.52 subdivision (1)(13).

Proposed legislation

• Rhode Island. A bill proposed in Rhode Island in 2021 (Rhode Island Legislature 2021 Regular Session Senate Bill 195) would increase penalties for wage theft, making nonpayment of wages a felony if the value of the wages owed to an employee is at least $1,500, or if the violation was a knowing or repeat violation (R.I. AG 2021)
• California. A bill proposed in California in 2021 would increase criminal penalties for wage theft (Alvarez 2021).

Prosecutors may receive workers’ rights case referrals from a variety of sources

State and local prosecutors who have brought cases against employers for violating workers’ rights have received case referrals through a variety of sources. Accordingly, prosecutors wishing to receive referrals should build relationships with a number of organizations and offices. These relationships should be ongoing and systematic; referrals and successful collaborations are unlikely to result from one-off conversations or one-sided presentations.

Organizations and agencies representing or assisting workers are the most common case referral sources

• Worker advocacy groups. Worker centers, workplace safety and health advocates, and other worker advocacy groups regularly speak with and hear from workers seeking help for a range of workplace violations.
• Labor unions. In addition to representing their members, many unions are actively organizing in a range of workplaces and industries, and routinely speak with workers experiencing violations. Unions might bring forward cases involving employers that are violating workers’ rights, or winning government contracts and cheating on taxes owed and worker pay.
• State labor departments. As the state’s primary regulators and civil enforcers of workplace laws, many state labor departments receive a considerable volume of incoming complaints. While most do not have a systematic method for referring cases to prosecutors, labor departments of both California and New York have regular methods of ongoing referrals, which could readily be replicated elsewhere. In fact, in 2014, the California Labor Commissioner’s Office (the equivalent of the state labor department) created a “Wage Theft is a Crime” campaign, with materials including posters and radio spots (CA Lab. Com. 2021); the office also offered training to district attorney offices on how to develop and bring these cases (Ramirez 2018).17
• Labor advisory boards or councils. A noteworthy model is provided by the labor advisory boards or councils established by both the Queens and Suffolk County district attorneys in New York. The councils consist of unions, worker centers, worker advocacy groups, and others within their jurisdiction. The office holds quarterly meetings (in person prior to the COVID-19 pandemic), which allow for formal discussions as well as informal conversations, relationship-building, and case referrals. These formalized groups create a way for DA offices to engage systematically and regularly with the community. (Suffolk Cty. DA 2020b).

Government agencies and officials outside of labor agencies are additional potential sources for case referrals

• State agencies such as those overseeing workers’ compensation insurance are sources of referrals, as are any state inspectors general
• City or municipal labor standards offices, where they exist, or city departments of investigation may refer cases. Many cities, including Chicago, Denver, Minneapolis, New York, Philadelphia, San Francisco, Seattle, and more, have city-level labor offices devoted to protecting workers’ rights. Also, for example, the New York City Department of Investigation hosts inspectors general for the School Construction Authority, the New York City Housing Authority, and more; these inspector general offices have been an active source of cases for prosecutors in New York City.
• Elected officials may be sources of referrals, particularly those representing immigrant or low-income communities.
• The U.S. Department of Labor, especially the Wage and Hour Division and OSHA, may be a source of referrals, although generally they first refer cases to U.S. attorney offices.
• DAs, AGs, and labor enforcers in other states can refer cases in situations involving employers operating in multiple jurisdictions.

Nongovernmental organizations are another important source of potential case referrals. They include:

• legal services and other public interest law offices
• plaintiffs’ wage and hour lawyers, such as members of the National Employment Lawyers Association or its state or local affiliate
• organizations that serve victims of human trafficking
• immigrants’ rights organizations and lawyers/nonprofits representing immigrants
• media, including social media and foreign language media, whose coverage can provide leads on cases
• law school clinics
• companies that compete with employers who are violating the law

Traditional law enforcement sources, like police departments or sheriffs’ offices, may also be helpful, but may presently be more useful as supplements to referrals from and collaboration with worker-focused organizations and agencies described above

• Workers face barriers to reporting violations directly to law enforcement for a variety of reasons, including fear of retaliation, agency language access limitations, unfamiliarity with legal rights or avenues for complaints, and fear of potential immigration consequences, among others (Grittner and Johnson 2021). One study estimated that there are about 130 violations for every one complaint lodged overall, and that this ratio varies tremendously across industries (Weil and Pyles 2007). Thus, a lack of worker complaints does not indicate employer compliance.18
• Still, a prosecutor’s own intake phone number, hotlines, or other avenues for receiving calls and tips from the public can sometimes lead to cases, especially after an office has publicly communicated its involvement in worker issues. These public engagement resources may receive more intakes and calls from workers after media or other announcements about workers’ rights cases. However, based on the barriers to worker complaints, relying solely on already-existing passive intake systems is unlikely to lead to information about the most egregious violations, especially during an office’s initial stages of involvement on these issues.
• To date, few prosecutions appear to have been initiated by law enforcement, such as sheriffs’ offices or the police. Prosecutors may wish to consider offering trainings to such agencies on workers’ rights issues.
• In a recent development, the Los Angeles County Sheriff in February 2021 launched a wage theft task force “to protect undocumented and documented workers in Southern California.” The task force is a collaboration of the sheriff’s department with the state labor commissioner, the Los Angeles County Office of Immigrant Affairs, the Los Angeles County District Attorney’s Office, the Los Angeles County Federation of Labor, and several community groups (LACSD 2021a). The sheriff’s department will be receiving complaints and referring them for criminal prosecution, civil enforcement, or other handling, as well as playing a direct role in enforcement and collections (LACSD 2021b). The sheriff also authored a Washington Post op-ed about the task force (Villanueva 2021). In addition, the Travis County (Texas) Sheriff’s Office added “wage theft” to a form allowing for online reporting of certain crimes (Travis CSO 2021).

Criminal justice concerns should be considered when prosecuting workplace violations

Racial and economic inequities in the criminal justice system and vulnerabilities of immigrant workers raise important concerns about these criminal prosecutions, including the following:

• Charging only low-level supervisors may fail to punish those with real responsibility for and authority over workers’ conditions. Some prosecutors may lean toward pursuing low-level supervisors with limited authority, while taking no action regarding higher-level officials with greater decision-making power. Prosecutions should seek to avoid this focus only on the “low-hanging fruit,” and instead attempt to target those with greatest responsibility for causing violations and with genuine ability to stop or prevent the violations. Prosecuting actors higher up the hierarchy is likely to prove challenging at times, because it is necessary to demonstrate that the defendant had mens rea, or the requisite criminal intent, and also because the standard of proof in criminal cases—“beyond a reasonable doubt”—is higher than the standard in civil cases. Prosecuting higher-level officials is important, however, to place responsibility on those who truly can change workers’ conditions, and to more effectively deter violations. As University of Maryland School of Law Professor Rena Steinzor observes, “the law must authorize prosecutors to climb the managerial ladder to find those responsible for making such incidents inevitable” (Steinzor 2015, 92.) In addition, prosecutors should be aware of racial disparities that may exist in pursuing only lower-level actors.
• Certain convictions have collateral immigration consequences for defendants. Under current immigration laws, certain criminal convictions can have immigration consequences, including threat of deportation. Prosecutors may wish to seek to avoid such consequences in considering charges for these cases. In 2017, for example, Brooklyn District Attorney Eric Gonzalez hired immigration attorneys to help prosecutors in his office “tailor criminal charges and plea bargains to avoid placing immigrant defendants in jeopardy of deportation” (Ryan 2017).
• Prosecutors should consider certifying victims and witnesses or U visas, where appropriate. Immigration issues also arise in relation to victims and witnesses, who may fear coming forward because of perceived potential consequences. The U visa is an immigration benefit for victims of certain crimes who are currently assisting, have assisted, or are likely to be helpful in assisting law enforcement in the investigation or prosecution of a qualifying crime. The U visa provides eligible victims with temporary immigration status to remain in the United States while assisting law enforcement, and if certain conditions are met, the U visa holder can ultimately obtain lawful permanent resident status. Individuals seeking U visas must be certified by a qualifying law enforcement agency, a category that includes prosecutors, and the certification process is relatively uncomplicated. Qualifying crimes include, among other things, human trafficking, involuntary servitude, manslaughter, obstruction of justice, peonage (holding someone in debt in servitude), sexual assault, and witness tampering (U.S. DHS 2019; NILC 2010).
• Alternatives to incarceration may be appropriate. Our country is undergoing an extensive national conversation about systemic racial inequities involved in mass incarceration. While a discussion of the problem of mass incarceration is beyond the scope of this report, prosecutors may want to consider alternatives to incarceration in resolving these cases. They may also want to consider whether innovative approaches to sentencing might be more effective. Finally, some criminal prosecutions of workers’ rights violations have been brought against corporations, not individuals; while such prosecutions are often seen as having less of an impact, they obviously raise no concerns about incarceration.
• Case resolution should include measures to ensure future compliance. In cases involving employers that continue to operate, prosecutors should seek terms that include monitoring or other measures to ensure future compliance. Monitoring could be performed by third-party monitors paid by the employer, or in partnership with administrative enforcement agencies. Prosecutors should also seek asset forfeiture where appropriate. A powerful tool in prevailing wage cases is debarment, which prevents a company from bidding on public works contracts in a given jurisdiction for a set period, sometimes up to five years. In addition, prosecutors may want to consider whether a restorative justice approach may be warranted or appropriate in these cases.19
• Workers who are victims should be provided with the opportunity to submit victim impact statements. Victims are often permitted or encouraged to submit victim statements (in writing or orally) regarding the impact of the crime on their lives. This opportunity should be provided to workers, because it enables their voices to be included in the process. Having the opportunity to address the court orally or in writing can be meaningful for workers, educates employers about the human consequences of their actions, and helps fully inform courts about the impact of wage theft and other employer crimes against workers.
• Civil enforcement may be a good option for prosecutors in some states. In some states, district attorneys have the authority to bring not only criminal prosecutions, but also civil lawsuits. For example, the Los Angeles and San Francisco district attorneys recently filed a civil lawsuit against the platform cleaning company Handy (L.A. DA 2021). To the extent that district attorneys have civil authority, they can consider exercising it to enforce workers’ rights.

While most prosecutors have brought workers’ rights cases without dedicated funding, limited dedicated funding mechanisms exist in some jurisdictions

Most DAs and state AGs who have brought workers’ rights cases have done so without any specific or dedicated funding. Just as they regularly prosecute theft, larceny, fraud, manslaughter, and other cases without dedicated funding, they simply add labor-related cases to their caseload when they emerge. However, there are a few examples of dedicated funding mechanisms.

• Funding to combat human trafficking. The U.S. Department of Justice has awarded funding to combat human trafficking; a 2020 press release describes over $101 million in grants for, among other things, “enhancing the capacity of law enforcement and other stakeholders to identify victims and provide justice for those victims through the investigation and prosecution of their traffickers” (U.S. DOJ 2020).

• Examples of state funding programs that may be used to pursue employer crimes. California and New York both have unique programs that are not specifically devoted to prosecution of employer crimes, but that have routinely been used to prosecute them. The infractions that qualify for the funding include those related to payroll fraud (such as failure to carry workers’ compensation), workers’ compensation fraud, and failure to pay or accurately report unemployment insurance taxes. Prosecutors have often also brought wage theft charges as part of those cases, given that these offenses often occur in clusters by the same employers.

• • Funding created by state legislation in California. California’s Workers’ Compensation Insurance Fraud Program, established in 1991, came about as part of a legislative package making workers’ compensation fraud a felony, requiring insurers to report suspected fraud, and establishing a mechanism for funding enforcement and prosecution activities. The funding comes from an assessment on employers. The aggregate assessment in the 2017–2018 fiscal year was more than $62 million. The legislation also established a commission, with representatives from labor, employers, and insurers, to determine the level of assessments and award grants to prosecutors. (Calif. DOI n.d.a, n.d.b).

• • State funding without legislation in New York. New York’s Crimes Against Revenue Program (CARP) was established in 2004 as a program funded by the state’s Division of Criminal Justice Services. It provides grants to district attorneys’ offices across the state to fund investigations and prosecutions of tax crimes as well as Medicaid, public assistance, and workers’ compensation fraud. Under the program, local district attorneys’ offices partner with various state agencies in bringing prosecutions. CARP funds have been used to support prosecutions of cases involving violations of prevailing wage, unemployment insurance, and workers’ compensation laws. Successful cases under CARP allow the state to recoup the costs of the program through restitution, fines, and penalties. The program has been revenue-generating for the state (NYS DCJS 2015, 2020, 2021; DAASNY 2019).

Areas for further exploration include research on deterrence and questions about implementation

The incidence and impact of state and local criminal prosecutions of employers have not been extensively studied to date, leaving a number of questions for researchers, prosecutors, worker advocates, legal scholars, and others.

One set of key research questions relates to the impact of criminal prosecution. Does prosecution of one employer deter violations by others? If so, how can such deterrence be measured, and how does it compare with that of civil enforcement? Does deterrence stem from the greater likelihood of detection resulting from more enforcers addressing labor issues, from publicity and reputational harm, from the gravity of potential consequences, or from all of the above?

Questions related to implementation include: What is the capacity of district attorneys and state attorneys general to bring such cases and build practices in this area? What training needs do such offices have? How can current staff, including investigative staff or law enforcement, be trained to effectively handle cases that are often considerably different than many typical criminal prosecution cases?

There are also questions related to partnerships between prosecutors and other government and nongovernmental actors. What partnerships can and should be built with labor enforcement agencies, unions, or worker organizations? How should roles in partnerships with labor enforcement agencies be defined to ensure compliance with respective ethical obligations and agency priorities?

Conclusion and recommendations

Numerous DAs and state AGS have begun to prosecute wage theft, payroll fraud, and other crimes committed by employers. These state and local prosecutors are responding to egregious violations that harm workers and communities, make it difficult for honest employers to compete, and deprive public coffers of money needed for critical safety net programs. We recommend that state and local prosecutors, state legislatures, and worker advocates build on this valuable work by taking further action. More detailed tips for getting started are included in Appendix C. Some general recommendations are as follows.

Recommendations for state and local prosecutors

Become involved. If your office has not yet become engaged in protecting workers’ rights, begin to do so. Learn more about the issue, meet with relevant stakeholder groups, review your office’s authority and potentially applicable statutes, research pressing needs in your jurisdiction, and begin to map out a plan of action.

Increase involvement. Offices that have brought occasional prosecutions in this area should continue to develop and increase their involvement.

Establish dedicated units or build existing ones. DA and AG offices without dedicated workers’ rights units should consider creating such units, using existing staff and jurisdiction if necessary. District attorney offices may consider including such units within an economic crimes, white-collar crime, financial investigations, or community protection bureau, if such bureaus already exist within the office. Offices with dedicated units should continue and expand their work in this area.

Connect with other prosecutors involved in this area, to share best practices and learn from each other.

Recommendations for state legislatures: next steps

Review statutes to assess whether they adequately address wage theft, payroll fraud, retaliation, and other crimes against workers. If appropriate, states should strengthen laws protecting workers’ rights, including laws related to civil enforcement and criminal jurisdiction. They should also provide jurisdiction for labor enforcement, both civil and criminal, to state attorneys general.

Consider establishing funding mechanisms. California’s Workers’ Compensation Insurance Fraud Program and New York’s Crimes Against Revenues Program both provide funds for prosecutions that can include violations of workplace laws, and result in recoveries for the state. Prosecutions of workers’ rights cases can sometimes generate revenue, because employers who commit payroll fraud fail to pay unemployment and other taxes.

Recommendations for worker organizations and advocates

Engage with DA and state AG offices. Worker organizations and advocates—including unions, worker centers, advocacy groups, legal services providers, and others—should consider ways to engage with the local DA’s office as well as their state AG’s office, particularly where the DA or AG have expressed support for or concern about worker issues, low-income communities, or economic and/or racial justice.

Acknowledgments

The author thanks Mackenzie Bouverat, Daniel Perez, and Nikita Rumsey for research assistance, Lora Engdahl for editing assistance, and numerous worker advocates and DA and AG government lawyers for their insights. The author also thanks the Bernard and Anne Spitzer Charitable Trust and the Justice Catalyst for their support.

Endnotes

1. This report describes the role of criminal prosecutors at the state and local level, typically including district attorneys, county attorneys, and state attorneys general. They will collectively be referred to herein as “criminal prosecutors,” “prosecutors,” or “district attorneys.” This report does not include a discussion of federal prosecutions.

2. Wage theft is the practice of employers failing to pay workers the full wages to which they are legally entitled. It includes situations in which employers refuse to pay promised wages, pay less than legally mandated minimums, fail to pay for all hours worked, keep worker tips or deductions intended for worker benefits, or do not pay overtime. In some states, the term “wage theft” is defined in the law, but more commonly it is used as a colloquial and descriptive term to refer to a set of practices. See Rosado Marzán 2021 for a detailed description of wage theft.

3. When employers wrongly treat workers as independent contractors instead of as employees, this is known as misclassification. When employers pay workers in unreported cash “off the books,” this leads to payroll fraud. Both practices result in employer failure to pay unemployment insurance taxes or buy required workers’ compensation insurance; they are often also accompanied by various forms of wage theft. Misclassification and payroll fraud harm workers, deprive public coffers of revenue, and hurt honest employers who struggle to compete with lawbreakers.

4. See the “CPR’s Crimes Against Workers Database” (Center for Progressive Reform n.d.)

5. Prevailing wage laws exist in a number of states; they generally require contractors on government contracts to pay workers at least the locally prevailing wages and fringe benefits paid on similar projects in the area. This topic is discussed in greater detail in section Three B.

6. Training materials on file with author.

7. In about half of the states, workers’ OSH Act rights are enforced by state agencies that have state plans approved by OSHA (Rosenthal 2021, note 48).

8. The difficulty of holding companies accountable for complying with federal wage and hour requirements has been analyzed by EPI research on joint-employer standards (standards that guide when contractors and the firms that use them can be held jointly responsible for complying with the law). See, for example, Shierholz and Poydock 2021.

9. An Act Concerning Criminal Offenses for Failure to Pay Wages, and, In Connection Therewith, Implementing Recommendations from the Colorado Human Trafficking Council, CO H.B. 19-1267, sec. 1, § 3(a) (2019).

10. There are also many examples in U.S. history of arrests of workers who are striking or otherwise seeking better conditions, from striking garment workers in the early 1900s to striking janitors toward the close of the century. For example, when the owners of the Triangle Shirtwaist Factory in 1909 hired “thugs” to attack striking workers, the police ultimately arrested the strikers (Greenhouse 2019; Baker 1990).

11. One academic commentator, Professor Ben Levin, has raised concerns about prosecuting wage theft and other employer crimes; however, these objections are based on general critiques of the criminal justice system and opposition to incarceration, rather than anything specific about prosecution of employers for crimes against workers. A thorough discussion of such objections is beyond the scope of this report; for those who are particularly interested in more details regarding this critical appraisal, see Levin 2018a and 2018 b; Gerstein and Seligman 2018; and Migiel-Schwartz 2021.

12. This list of sample cases seeks to provide an overview of the types of cases pursued. Thus, some examples describe charges brought but not outcomes if, for instance, charges are announced when a case is started, but the agency does not issue a press release when the case is resolved.

13. See endnote 2 above for a discussion of the term “wage theft.”

14. In Colorado, a law strengthening penalties for wage theft stemmed in part from a report by the state’s human trafficking council; the bill’s legislative declaration notes that employers who commit human trafficking “often commit other crimes such as wage theft, tax evasion, and workers’ compensation fraud,” and also that “not all victims of wage theft are victims of human trafficking.” An Act Concerning Criminal Offenses for Failure to Pay Wages, and, In Connection Therewith, Implementing Recommendations from the Colorado Human Trafficking Council, H.B. 19-1267, sec. 1, § 3(a) (2019).

15. For information about workplace sexual assault in the agriculture and janitorial industries, see Frontline documentaries “Rape in the Fields” (Cediel and Bergman 2013) and “Rape on the Night Shift” (Altan, Cediel, and Bergman 2018).

16. For a manual with practical guidance on prosecuting occupational safety and health-related crimes against workers, see McCluskey et al. 2016.

17. Various legal ethics issues arise in relation to cases that may be either criminal, civil, or both. For example, ethical rules prohibit threatening criminal charges to gain advantage in a civil suit. Prosecutors and any civil agencies referring cases should carefully review and discuss these and other restrictions as part of the process of establishing any collaborations.

18. See “Strategic Complaint Response Matrix,” Figure 6.2, p. 84 (Weil 2010).

19. “Restorative justice is an approach that focuses on meeting the needs of those who have been harmed while inviting those who have caused harm into a process of active accountability” (CCI n.d.).

Appendix A: Sample legal documents from past prosecutions of employer crimes against workers

The following list contains samples of public record documents in a range of prosecutions of employers. For simplicity and ease of reference, the listing includes the name of the prosecuting office, the state (where not included in the office name), the type of document, and year the document was filed. Documents are organized according to the primary issue in a given case; however, as discussed throughout this report, the same case may often include a number of different charges and violations.

Child labor

New York State Attorney General, misdemeanor complaint, 2014

New York State Attorney General, supporting deposition, 2014

New York State Attorney General, appellate court decision, 2018

Fraudulent garment shop licensing

California Attorney General, felony complaint, 2018

California Attorney General, declaration in support of arrest warrants, 2019

Labor trafficking

California Attorney General, felony complaint, 2018

Minnesota, Hennepin County District Attorney, complaint, 2018

New York, Suffolk County District Attorney, Singh case. Four felony complaints were filed in this case: labor trafficking, labor trafficking, offering a false instrument for filing, and scheme to defraud, all 2020

Payroll fraud primarily

California Attorney General, amended felony complaint, 2010

California Attorney General, petition to preserve property and assets, 2011

California, Alameda County District Attorney, felony complaint, 2016

California, Contra Costa County District Attorney, felony complaint, 2020

California, Contra Costa County District Attorney, forfeiture and restitution order, 2020

California, Contra Costa County District Attorney, plea agreement, 2020

New York, Suffolk County District Attorney, felony complaint, 2020

New York, Suffolk County District Attorney, indictment, 2020

New York, Suffolk County District Attorney, information, 2020

[Wage theft and payroll fraud] New York State Attorney General, indictment, 2013

Prevailing wage violations

California, Yolo County District Attorney, preliminary hearing brief, 2014

California, Yolo County District Attorney, sentencing brief, 2019

Massachusetts Attorney General, joint proposed motion and order for agreed restitution amount, 2018

New York State Attorney General, felony complaint, 2017

New York State Attorney General, indictment, 2017

New York, Kings County District Attorney, debarment stipulation, 2017

New York, Kings County District Attorney, indictment, 2019

New York, Queens County District Attorney, indictment, 2019

New York, Suffolk County District Attorney, felony complaint, 2020

Pennsylvania Attorney General, complaint and affidavit of probable cause, 2021

Pennsylvania Attorney General, sentencing order, 2021

Pennsylvania Attorney General, complaint and affidavit of probable cause, 2019

Wage theft and payroll fraud

Wage theft

California, Contra Costa County District Attorney, TRO barring dissipation of assets, 2016

Minnesota, Hennepin County District Attorney, complaint, 2013

Washington State Attorney General, Sandoval case (multiple documents): defendant’s sentencing memorandum, judgment and sentence of corporate defendant, judgment and sentence of individual defendant, all 2018

Wage theft and payroll fraud

California, Alameda County District Attorney, complaint, 2016

California, Alameda County District Attorney, order barring dissipation of assets, 2017

California, Contra Costa County District Attorney, application for TRO barring dissipation of assets, 2015

California, Contra Costa County District Attorney, complaint, 2015

California, Contra Costa County District Attorney, felony complaint, 2014

California, Santa Monica City Attorney, complaint, discovery request, 2013

California, Santa Monica City Attorney, first amended complaint, 2013

California, Santa Monica City Attorney, terms and conditions of probation, 2013

Massachusetts Attorney General, memo to aid the court regarding sentencing, 2018

Massachusetts Attorney General, statement of the case, 2018

New York State Attorney General, complaint, 2015

New York State Attorney General, felony complaint, 2015

New York State Attorney General, indictment, 2018

Workplace safety and health

New York, Kings County District Attorney, corporate summons, 2019

New York, Kings County District Attorney, indictment, 2017

New York, Kings County District Attorney, indictment, 2018

New York, Kings County District Attorney, letter to court, 2020

Appendix B: Additional sources of information about cases

While no comprehensive list of all relevant cases has been compiled, the Center for Progressive Reform maintains a “Crimes Against Workers” database.

In addition, this informal spreadsheet contains information about numerous cases that have recently been the subjects of press releases or media coverage.

Appendix C: Getting started

While this report does not include a detailed roadmap for implementing a new criminal prosecution program in a jurisdiction, the following are some tips, mostly from front-line prosecutors engaged in this work, for district attorneys’ offices wanting to get started, as well as tips for worker advocates hoping to encourage their local DAs to begin prosecuting employer crimes against workers. Finally, there are some tips for both prosecutors and worker advocates about building their relationships.

Tips for prosecutors’ offices wanting to get started

Prepare to do the work

• Conduct initial research
  • Review your jurisdiction’s criminal, labor, and insurance fraud statutes and compile a list of all laws with criminal provisions that may apply in an employment setting (even if there is no precedent). Determine what elements need to be proven.
  • Think about what background information can inform the work: the shape of the local economy, which kinds of workers are most vulnerable, who handles these cases civilly, etc.
  • Connect with prosecutors from other jurisdictions to understand how they have brought cases (even under different laws).
  • Connect with labor-focused national organizations and think tanks (like the Economic Policy Institute, the National Employment Law Project, and others) that can provide background and orientation.
• Prepare the team
  • Identify lawyers who will staff the unit (if applicable) or handle the cases. Ideally, there would be at least two: one with labor background and one with a background in criminal prosecution, although this may be difficult. Another effective combination would be to identify an attorney from the state or local labor enforcement agency who can work in close partnership with the assistant DA handling cases.
  • Train lawyers on the team regarding finding and prosecuting cases.
  • Clarify who will be responsible for conducting your investigations—local police, DA investigators, attorneys, sworn or nonsworn investigative personnel from other agencies—and try to prepare some initial trainings or find other offices that can share training resources.

• Ask big picture questions
  • Consider setting some basic parameters for cases that you will consider for criminal prosecution (such as number of workers, amount of theft, evidence of discrimination). This will help set realistic expectations for worker advocates who refer cases and help maintain those relationships. If needed, you can make exceptions to the parameters for particularly egregious cases in which criminal charges are appropriate.
  • Consider the broad goals of the work. What would constitute a “success” for your office in this area: restitution to large numbers of workers? evidence of deterrence? How might you assess your office’s impact?
• Plan for implementation issues
  • Think about what it might take for your office to collaborate with vulnerable workers: language assistance? Certain kinds of investigators? Strategic collaborations? Be sure to ensure language accessibility by having interpreters on staff or on standby if needed for interviewing witnesses. Working closely with community-based and worker organizations can enhance trust with witnesses.
  • Set up a complaint form, phone line, and e-mail submission access.

Reach out to a wide range of stakeholders and partners

• Build relationships with organizations that engage with workers
  • Identify, reach out to, and build relationships with unions, worker centers, advocacy groups, and other community-based organizations that serve and advocate for workers, as well as private and nonprofit employment and labor lawyers. In addition to organizations focusing on workers, consider reaching out to social services, immigration services, or religious organizations; community or cultural centers; and consulates.
  • It is often helpful to meet in the offices of these partner organizations or attend events they hold, to learn about what they do and who they serve. Talk to their members and ask about their experiences.
  • Offer to do a presentation on wage theft and related crimes for their members, maybe highlighting cases in other jurisdictions that may have parallels in cases in your jurisdiction.
  • Keep in regular touch so that you are top of mind and staff at these organizations feel comfortable contacting you should a particularly egregious case come to their attention.
• Connect with other government agencies
  • Get to know state agency partners—and not just those in the labor department. Include insurance regulators, revenue departments, financial institution regulators, and others. Identify, reach out to, and build relationships with other law enforcement agencies that operate in the following workplace areas: wage and hour standards, employment tax issues, health and safety, and industry-specific areas (for example, public health departments may inspect nursing homes). Research which of the laws/regulations they enforce could constitute criminal violations.
  • Meet and greet and talk about what other jurisdictions have done, and explore how coordinated enforcement can make all your cases stronger. If you have investigative resources, offer them to support joint investigations. When a specific case is referred to you, reach out to them as experts for questions related to their agencies’ jurisdiction.
  • Connect with other law enforcers in your county/state from the offices of the attorney general, department of labor, human rights, etc.
• Reach out to the employer community
  • Reach out to business associations, the local Chamber of Commerce, and the management bar, and inform them of your office’s intention to start bringing cases in this area.
  • In some industries, law-abiding employers appreciate enforcement because they lose work and struggle to compete with businesses that gain a competitive advantage by violating laws.
  • This outreach also places the community that may face prosecution on notice. In fact, outreach itself can help drive legal compliance, as concerned employers may change practices.
• Consider a general outreach campaign
  • A general outreach campaign, along the lines of the California Labor Commissioner’s “Wage Theft is a Crime” media campaign, can be helpful for raising awareness.

Select and handle cases

• Choose initial cases carefully. While your office surely selects all cases carefully, it is wise to choose your first several cases in any new area extremely carefully, so that you begin by taking on cases with egregious facts and exceedingly strong evidence, as well as witnesses committed to the case, which can be facilitated through working with community-based and worker organizations.
• Set realistic expectations regarding outcomes. Set realistic expectations with workers who are victims and witnesses regarding case outcomes, including regarding restitution amounts and likelihood of incarceration.
• Plan your investigative steps
  • Visit and observe the place of employment if open to the public.
  • Conduct interviews with as many workers as possible. Learn the witnesses’ stories. Be sure to ask what they experienced on the job (pay rates, schedules, cash or check, type of work, etc.)
  • If applicable, work closely with the organization or advocates that referred the case to you, to help build a relationship of trust with the witnesses, facilitate a thorough investigation, and foster open communication throughout the course of the investigation.
  • If possible, work closely with an investigator and financial auditor. Try to enlist a forensic accountant, who can help follow the money and be able to explain how things went bad.
  • Serve grand jury subpoenas when warranted: recipients may include the employer, payroll services, banks, insurance companies that have issued liability or workers’ compensation policies, and unemployment insurance agencies.
  • Where appropriate, obtain a search warrant if needed when you have probable cause and reliable information as to the location of payroll and employee information.

Tips for worker advocates hoping to engage with their local DAs

Prepare to do the work

• Talk with workers or members about their needs and your organizational goals, and discuss the pros and cons of engaging with the criminal justice system for these cases.
• Reach out to advocates in jurisdictions where there have been successful criminal wage theft prosecutions. Talk to the community-based organization partners there to learn how they got started, what worked and didn’t work, what challenges they faced, what they would do differently. Ask for contact information for the prosecutors and administrative enforcement agencies they worked with.
• Reach out to the administrative enforcement agencies you already work with to ask whether they have ever considered referring cases for criminal prosecution. Offer to facilitate a conversation with their colleagues in other jurisdictions who have.
• Connect with labor-focused national organizations and think tanks (like the Economic Policy Institute, the National Employment Law Project, and others) that can provide background and orientation.

Meet with your local DA’s office

• Plan before the meeting: Consider how you might best educate prosecutors about what you see happening on the ground, including different kinds of sample cases you might share with them.
• Learn about the office’s structure, jurisdiction, and staffing. Are there economic crimes or consumer protection units, which might be a good fit? Does the prosecutor’s office also have civil jurisdiction in addition to criminal authority?
• Prepare to educate them about worker issues and workplace laws. These issues may be new to them, and they may not be familiar with the labor laws in your jurisdiction. Understand that what you are asking them to do may be different from the cases they have traditionally brought. Share information about cases brought in other jurisdictions, and share resources about the growing trend of criminal prosecution of employer crimes against workers.
• Ask prosecutors and investigators what information they need, and how and when they want it presented to them. Also try to learn where resources and the law are lacking. Ask how they work differently from civil attorneys or agencies.
• Share information about the working conditions you believe should be addressed by criminal prosecution. Share compelling, egregious stories, and also information about successful prosecutions in other jurisdictions. Explain why criminal prosecutions can be so powerful in terms of deterrence and compliance.
• Offer to connect them with prosecutors from other jurisdictions who have brought cases enforcing workplace rights.
• Consider inviting your local prosecutor to your space, so they can get to know your workers and vice versa. Or invite the prosecutor to one of your organization’s meetings or events, so they can hear firsthand about unlawful working conditions from the workers experiencing them. Offer them time at a meeting or event to speak about what their office does and how the office can help the community, beyond the specific issue of prosecution of work-related issues.

Make referrals

• Ask beforehand what kind of information the office would like to receive. Ask also when referrals should be made: Sometimes prompt referrals, such as when a construction project is still ongoing, can enable covert investigation.
• Remember sensitive aspects of criminal prosecution and government work. For example, emails may be subject to freedom of information laws, and witness statements must be provided to the defense in criminal cases. Ask if prosecutors would prefer an email or phone call to start a conversation about a referral.
• Understand constraints faced by the prosecutor such as statutes of limitation and the more stringent “beyond a reasonable doubt” burden of proof.
• Be mindful of relationships among different prosecutors, agencies, and regulators: they may prefer not to have the same issue referred to multiple government offices. If you are referring the same matter to more than one office, it’s helpful to alert them.
• One of the most useful things you can do in referring a case is to help an office connect with workers who can serve as witnesses, and to help keep track of worker witnesses as an investigation and case proceed. Other helpful steps include providing background information about an employer, and helping workers gather evidence such as pay stubs, paychecks, or photographs.

Tips for both prosecutors and worker advocates about building their relationships

Discuss priorities and concerns of advocates.

Discuss relevant aspects of the prosecutor’s office, including the following: investigative process, case selection criteria, enforcement priorities, and applicable statutes of limitation.

Share information about the prosecutor’s office and worker organization as a whole, beyond the potential for case referrals.

Learn about the full scope of each other’s functions and activities:

• What areas does the office or organization work in? What services does it provide, or for an organizing group, what activities does it engage in?
• What resource limitations or constraints exist? What is the staffing level and structure?
• What are current priorities? Recent innovations?
• Are there other issues on which there is potential for collaboration, such as fighting elder abuse, affinity group fraud, or fraudulent immigration service providers?

Discuss the process for case referrals

• What kinds of cases should be referred? Are there dollar or worker thresholds?
• When and how should cases be referred? What information should be included in a referral?
• To ensure that workers are willing to come forward and report violations, prosecutors’ offices should not ask workers about immigration status. This should be explicitly discussed so that everyone involved understands the office’s practices in this regard.
• Will there be a point person on both sides?
• What information can be shared with the worker organization referring the case? There is often a significant asymmetry in the information flow, as DA offices have significant limitations in what they can share with people outside of the DA’s office.
• What are the general steps in cases and what is the typical timeline?
• How will any media coverage be handled?
• What may be included in a resolution?
• Will there be an opportunity for workers to submit victim impact statements?
• What information must be kept confidential to avoid compromising the case?

Maintain regular contact

• Even though a DA office may not accept the first few case referrals, eventually there may be a referral that works.
• Remember that both offices share the goal of protecting workers.
• Stay in communication even if there’s no case yet, and explore opportunities for collaboration. For example, the worker organization could provide training about a specific industry with high rates of violation, or the prosecutor’s office could provide a know-your-rights presentation on an issue of interest to members.

References

AFL-CIO. 2020. Death on the Job: The Toll of Neglect, 2020. 29th edition, October, 2020.

Alvarez, Felicia. 2021. “New Bill Proposes Jail Time For Employers Who Participate in Wage Theft.” Sacramento Business Journal, February 23, 2021.

Ashenfelter, Orley, and Robert S. Smith. 1979. “Compliance with the Minimum Wage Law.” Journal of Political Economy 87, no. 2 (1979): 333–350. Accessed March 23, 2021. http://dx.doi.org/10.1086/260759

Associated Press (AP). 2017. “Owner of Last Howard Johnson’s Restaurant Charged with Sexual Abuse.” Boston.com, October 12, 2017.

Associated Press (AP). 2018. “Owner of Last Howard Johnson Restaurant Jailed for Sexual Harassment.” CBS News, November 1, 2018.

Associated Press (AP). 2019. “Michigan AG Nessel Issues 13 Felony Charges in First Payroll Fraud Case.” Fox47 News, August 28, 2019.

Altan, Daffodil, Andrés Cediel, and Lowell Bergman. 2018. “Rape on the Night Shift.” Frontline PBS and Univision Documentary. Aired January 16, 2018.

Baker, Bob. 1990. “Police Use Force to Block Strike March.” Los Angeles Times, June 16, 1990.

Bear, John. 2018. “Boulder Businessman Scott Roy Sentenced to Six Months in Jail for Unlawful Sexual Contact.” Daily Camera, January 12, 2018.

Berkowitz, Deborah. 2017. OSHA Severe Injury Data From 29 States: 27 Workers A Day Suffer Amputation or Hospitalization. National Employment Law Project, April 2017.

Bernhardt, Annette, Ruth Milkman, and Nik Theodore. 2009. Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws In America’s Cities. National Employment Law Project, September 2009.

Bhargava, Deepak, and Alexander Hertel-Fernandez. 2020. “Looking Ahead: Enforcement For the Many, Not the Few.” Democracy, a Journal of Ideas, Fall 2020.

Boyd, Shaun. 2019. “Put the Exploiters In Jail’: Wage Theft Bill Cracks Down On Employers.” 4CBS Denver, April 2, 2019.

Brooklyn District Attorney’s Office. n.d. “Frauds Bureau,”( web page). Accessed April 19, 2021.

Brooklyn District Attorney (Brooklyn DA). 2019. “Construction Company Operator, Foreperson and Engineer Indicted for Manslaughter in Death of Laborer Buried in Debris Following Wall Collapse” (press release). November 21, 2019.

Bureau of Labor Statistics, Current Population Survey (BLS-CPS). 2021. “Union Members—2020” (news release). Accessed March 1, 2021.

Bureau of Labor Statistics, Injuries, Illnesses, and Fatalities (BLS-IFF). 2019a. “National Census of Fatal Occupational Injuries in 2019” (news release). Accessed December 16, 2020.

Bureau of Labor Statistics, Injuries, Illnesses, and Fatalities (BLS-IFF). 2019b. “Employer-Reported Workplace Injuries and Illnesses — 2019” (news release). Accessed November 4, 2020.

Byars, Mitchell. 2017. “Boulder Ice Cream Co-owner Facing New Sex Assault Charges.” Daily Camera, March 29, 2017.

Byars, Mitchell. 2019a. “Boulder Man Fails to Pay Undocumented Workers, Then Threatens Them, Police Say.” Daily Camera, January 8, 2019.

Byars, Mitchell. 2019b. “Boulder Man Sentenced For Threatening Undocumented Workers.” Daily Camera, November 12, 2019

Byfield, Erica. 2019. “6 Charged in 2018 NYC Wall Collapse that Killed Construction Worker.” NBC New York, November 21, 2019.

Byrne, Matt. 2019. “Contractor Indicted on Manslaughter Charges in Worker’s Fatal Fall from Roof.” Portland Press Herald, April 10, 2019.

California Attorney General’s Office (Calif. AG). 2018. “Attorney General Becerra Announces Criminal Charges in a Bay Area Labor Exploitation and Human Trafficking Case” (press release). September 7, 2018

California Department of Insurance (Calif. DOI). n.d.a. “Workers’ Compensation Fraud” (web page). Accessed April 10, 2021.

California Department of Insurance (Calif. DOI). n.d.b. “Fraud Assessment Commission.” (web page). Accessed April 12, 2021.

California Labor Commissioner’s Office (CA Lab. Com). 2021. “Wage Theft is a Crime Campaign Materials” (web page). Accessed April 11, 2021.

California Statewide Law Enforcement Association (CSLEA). 2016. “San Diego Restaurant Owner Sentenced to Jail for Wage Abuses.” December 12, 2016.

California Statewide Law Enforcement Association (CSLEA). 2019. “Former Owner of Temp Agency Convicted of Workers’ Comp. Insurance Premium Fraud.” December 10, 2019.

California Superior Court for the County of Los Angeles, “Protective Order,” Case No. 9CA01116, August 13, 2010.

Carré, Françoise. 2015. (In)dependent Contractor Misclassification. Economic Policy Institute, June 2015.

Cediel, Andrés, and Lowell Bergman. 2013. “Rape in the Fields.” Frontline PBS and Univision Documentary. Aired June 25, 2013.

Center for Progressive Reform (CPR). n.d. “CPR’s Crimes Against Workers Database” (database). Accessed, April 6, 2021.

Center for Court Innovation (CCI). n.d. Restorative Justice (webpage). Accessed April 19, 2021.

Centro de Trabajadores Unidos en La Lucha (CTUL). 2019. “Victory!” (web post). May 2019.

Chatterjee, Rhitu. 2018. “A New Survey Finds 81 Percent of Women Have Experienced Sexual Harassment.” The Two-Way, NPR. February 21, 2018.

Chen, David W. 2016. “Construction Company Guilty of Manslaughter in Immigrant Worker’s Death.” New York Times, June 10, 2016.

Cho, Eunice Hyunhye, Tia Koonse, and Anthony Mischel. 2013. Hollow Victories: The Crisis in Collecting Unpaid Wages for California’s Workers. UCLA Labor Center and National Employment Law Project, 2013.

Christian, Murray. “Queens DA Launches Bureau Targeting Predatory Lenders and Housing Scammers.” Astoria Post, June 3, 2020.

Christian, Peter. 2019. “Helena Man Pleads Guilty to Felony Employer Misconduct.” KGVO. October 3, 2019.

Colorado Fifth Judicial District Attorney’s Office. 2020. (Colo. 5th DA). “Local Contractor Charged with Wage Theft from His Employees, and Tax Evasion” (press release). June 25, 2020.

Colorado General Assembly. 2019. Bill Summary for HB19-1267; House Committee on Judiciary Report, Hearing Summary, April 2, 2019.

Colvin, Alexander J.S. 2018. The Growing Use of Mandatory Arbitration: Access to the Courts is Now Barred for More Than 60 Million American Workers. Economic Policy Institute, April 2018.

Cooper, David. 2016. Balancing Paychecks and Public Assistance: How Higher Wages Would Strengthen What Government Can Do. Economic Policy Institute, February 2016.

Cooper, David, and Teresa Kroeger. 2017. Employers Steal Billions from Workers’ Paychecks Each Year. Economic Policy Institute, May 2017.

Costa, Daniel, Philip Martin, and Zachariah Rutledge. 2020. Federal Labor Standards Enforcement in Agriculture: Data Reveal the Biggest Violators and Raise New Questions about How to Improve and Target Efforts to Protect Farmworkers. Economic Policy Institute, December 2020.

Covert, Bryce. 2020. “Sexual Harassment at McDonald’s Is Even Worse Than We Knew.” The Nation, May 26, 2020.

District Attorneys Association of the State of NY. (DAASNY). 2019. Joint Budget Hearing Testimony on Public Protection before New York Senate. January 29, 2019.

District of Columbia Attorney General’s Office (D.C. AG). 2019. “AG Racine Releases Report on Payroll Fraud in District Construction Industry” (press release). September 10, 2019.

Dobruck, Jeremiah. 2014. “Contractor Convicted of Stealing Workers’ Wages During Costa Mesa Project.” Los Angeles Times, September 26, 2014.

Economic Policy Institute. 2018. Economic Policy Institute Policy Agenda, last updated December 2018.

Estlund, Cynthia, 2018. The Black Hole of Mandatory Arbitration, 96 N.C. L. Rev. 679, 692–699 (Mar. 2018).

Feldblum, Chai R., and Victoria A. Lipnic. 2016. EEOC Select Task Force on the Study of Harassment in the Workplace. U.S. Equal Employment Opportunity Commission. Accessed March 1, 2021.

Feshir, Riham. 2019. “Hennepin County’s First Labor-Trafficking Case Ends in Guilty Plea.” MPR News, November 19, 2019.

Fine, Janice, Daniel Galvin, Jenn Round, and Hana Shepherd. 2020. Maintaining Effective U.S. Labor Standards Enforcement Through the Coronavirus Recession. Washington Center for Equitable Growth, September 3, 2020.

Flaherty, Nora. 2019. “Saco Contractor Indicted on Rare Charge of Workplace Manslaughter.” Maine Public Radio, April 11, 2019.

Flanagan, Jane, Terri Gerstein, and Patricia Smith. 2020. How States and Localities Can Protect Workplace Safety and Health. Harvard Labor and Worklife Program and National Employment Law Project, May 2020.

Gartrell, Nate. 2016. “Wage Theft Allegations Grow Against Bay Area Elder Care Homes.” Mercury News. Updated August 11, 2016.

Gerstein, Terri, and David Seligman. 2018. “A Response to ‘Rethinking Wage Theft Criminalization.’” OnLabor, April 20, 2018.

Gerstein, Terri. 2020. Workers’ Rights Protection and Enforcement By State Attorneys General: State AG Labor Rights Activities from 2018 to 2020. Economic Policy Institute and Harvard Labor and Worklife Program, August 27, 2020.

Goodell, Nathaniel, and Frank Manzo. 2021. The Costs of Wage Theft and Payroll Fraud in the Construction Industries of Wisconsin, Minnesota, and Illinois. Midwest Economic Policy Institute, January 2021.

Gordon, Colin, Matthew Glasson, Jennifer Sherer, and Robin Clark-Bennett. 2012. Wage Theft in Iowa. Iowa Policy Project, August 2012.

Graves, Chris. 2020. “Contractor Gets 9 Months in Hennepin Co. Labor Trafficking Case.” MPR News. January 15, 2020.

Green, Jason. 2021. “San Jose Flooring Company Owner Charged with Wage Theft.” The Mercury News. April 13, 2021.

Green, Sara Jean. 2016. “Seattle Contractor Charged with Felony for Employee’s Death in 2016 Trench Collapse.” Seattle Times, January 9, 2018.

Greenhouse, Steven. 2019. Beaten Down, Worked Up: The Past, Present, and Future of American Labor. New York: Alfred A. Knopf (2019).

Hamaji, Kate, Rachel Deutsch, Elizabeth Nicolas, Celine McNicholas, Heidi Shierholz, and Margaret Poydock. 2019. Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers Are Fighting Back. Economic Policy Institute, Center for Popular Democracy, and National Employment Law Project, May 2019.

Harris, Sarah. 2014. “Violi’s Restaurant Owners Violated Child Labor Laws.” NCPR, December 12, 2014.

Haynes, Madisson. 2019. “Owner of Construction Company Faces Charges After Teen Dies in Trench Collapse.” WUSA9, November 21, 2019.

Human Exploitation and Trafficking Watch (HEAT Watch) (website). n.d. accessed April 10, 2021.

Hennepin County Attorney’s Office (Hennepin CA). 2019. “Ricardo Batres Pleads Guilty to Labor Trafficking” (press release). November 22, 2019.

Hennepin County Attorney’s Office (Hennepin CA). 2020a. “Husband and Wife Face Three Felony Charges for Elaborate Workers’ Compensation Fraud Scheme” (press release). January, 2020.

Hennepin County Attorney’s Office (Hennepin CA). 2020b. “Former Owners of Merit Drywall Sentenced for Insurance Fraud” (press release). November 2020.

Hennepin County Attorney’s Office (Hennepin CA). 2020c. “Ricardo Batres Sentenced to 270 Days in Jail and Five Years Probation for Labor Trafficking” (press release). January 2020.

HPM Digital Team. 2018. “Prosecutors File First Wage Theft Case in Harris County.” Houston Public Media, September 5, 2018. (HPM Digital Team 2018)

Huizar, Laura. 2019. Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation. National Employment Law Project, June 2019.

Intarasuwan, Kiki. 2018. “Rainbow Bright Daycare Trafficked Workers, Stole $8.5 Million in Wages: Attorney General.” NBC Bay Area, September 7, 2018.

Johnson, Matthew S. 2020. “Regulation by Shaming: Deterrence Effects of Publicizing Violations of Workplace Safety and Health Laws.” American Economic Review, 110 6 1866-1904. June 2020. https://www.aeaweb.org/articles?id=10.1257/aer.20180501

Grittner, Amanda M. and Johnson, Matthew S. 2021. “When Labor Enforcement and Immigration Enforcement Collide: Deterring Worker Complaints Worsens Workplace Safety.” Working Paper. 2021.

Kashinsky, Lisa. 2019. “Drain Company Owner Convicted of Manslaughter in South End Trench Collapse.” Boston Herald. October 31, 2019.

Levin, Ben. 2018a. “Rethinking Wage Theft Criminalization.” OnLabor, April, 13, 2018.

Levin, Ben. 2018b. “Prosecutorial Power, Prisons, and the Problem with Wage Theft Criminalization: A Reply.” OnLabor, April 30, 2018.

Levine, Marianne. 2018. “Behind the Minimum Wage Fight, a Sweeping Failure to Enforce the Law.” Politico, February 18, 2018.

Littlefield, Dana. 2017. “Company Owners Plead Guilty in $7 Million San Diego Hotel-Worker Fraud Case.” San Diego Union-Tribune. April 9, 2017.

Lopez, Pablo. 2018a. “Prosecutors Rack Up Fresno County’s First Ever Human Labor Trafficking Conviction,” Fresno Bee. August 31, 2018.

Lopez, Pablo. 2018b “Man Says He’s Innocent of Labor Trafficking. Judge Says He Turned Three Women into Slaves.” Fresno Bee. October 29, 2018.

Los Angeles County Sheriff’s Department (LACSD). 2021a. “LA County Sheriff Villanueva Launches the ‘Wage Theft Task Force’” (press release). February 9, 2021.

Los Angeles County Sheriff Department (LACSD). 2021b. “Wage Theft Task Force” (website). Accessed April 10, 2021.

Los Angeles County District Attorney’s Office (L.A. DA). 2021. “District Attorney Gascón Announces Worker Protection Lawsuit Against Handy for Misclassifying Its Workers.” (press release). March 17, 2021.

Lotshaw, Tom. 2021. “Local Contractor Pleads Guilty in Tax Evasion, Wage Theft Case.” VailDaily. January 6, 2021.

Mahalia, Nooshin. 2008. Prevailing Wages and Government Contracting Costs, Economic Policy Institute, July 3, 2008

Massachusetts Attorney General’s Office (Mass. AG). 2018. “New Bedford Man and East Providence Cleaning Company Charged in Connection With Labor Trafficking” (press release). May 7, 2018.

Massachusetts Attorney General’s Office (Mass. AG). 2019. “Temp Company Owners Plead Guilty to Wage Theft, Intimidation, and Retaliation Against Warehouse Workers” (press release). December 12, 2019.

McCluskey, Martha T.; Thomas O. McGarity; Sidney Shapiro; Rena Steinzor; Ron Wright; and Katherine Weatherford. 2016. Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law. Center for Progressive Reform. March 2016.

McNicholas, Celine, Margaret Poydock, Julia Wolfe, Ben Zipperer, Gordon Lafer, and Lola Loustaunau. 2019. Unlawful: U.S. Employers are Charged with Violating Federal Law in 41.5% of All Union Election Campaigns. Economic Policy Institute, December 2019.

McPherson, Elizabeth, “Texas Legislature Passes Groundbreaking Wage Theft Bill.” Construction Citizen, June 9, 2011.

McPherson, Elizabeth, “First Wage Theft Charges in Harris County History Brought Against Million-Dollar Homeowner for Refusing to Pay House Painter.” Construction Citizen, September 7, 2018.

Meixell, Brady, and Ross Eisenbrey. 2014. An Epidemic of Wage Theft Is Costing Workers Hundreds of Millions of Dollars a Year. Economic Policy Institute. September 2014.

Michigan Attorney General’s Office. (Mich. AG). 2019. “Michigan AG Nessel Issues 13 Felony Charges in First Payroll Fraud Case.” (press release). August 28, 2019

Mid Hudson News. 2020. “Hoovler Holds Labor Fraud Training for State DAs.” June 24, 2020.

Migiel-Schwartz, Michael. 2021. “Why District Attorneys Should Take Up Wage Theft Criminalization.” OnLabor, February 22, 2021.

Minkler, Meredith, Alicia L. Salvatore, Charlotte Chang, Megan Gaydos, Shaw San Liu, Pam Tau Lee, Alex Tom, Rajiv Bhatia, and Niklas Krause. 2014. “Wage Theft as a Neglected Public Health Problem: An Overview and Case Study from San Francisco’s Chinatown District.” American Journal of Public Health, vol. 104(6), 1010–1020. June, 2014. https://doi.org/10.2105/AJPH.2013.301813

Minnesota Attorney General’s Office (Minn. AG). 2019. “Attorney General Ellison Announces New Wage Theft Unit in AGO.” (press release). July 15, 2019.

Nassau District Attorney’s Office. n.d. “Nassau County District Attorney’s Office Bureaus.” (web page). Accessed April 19, 2021.

National Academies of Sciences, Engineering, and Medicine (NASEM). 2020. Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine. National Academies Press, June 2018.

National Conference of State Legislatures (NCSL). 2018. “Prosecuting Human Traffickers” (web page). Accessed April 1, 2021.

National Human Trafficking Hotline (NHTH). 2019. U.S. National Human Trafficking Hotline 2019 Data Report. National Human Trafficking Hotline and Polaris Project. Accessed March 1, 2021.

National Immigration Law Center (NILC). 2010. The U Visa and How It Can Protect Workers. September 2010.

NBC10 Boston. 2019. “Atlantic Drain Owner Convicted in Boston Trench Collapse That Killed 2 Workers.” October 31, 2019.

New Jersey Attorney General’s Office (N.J. AG). 2019. “Contractor Pleads Guilty to Falsifying Records to Cheat Workers Out of $200,000 by Not Paying Prevailing Wages” (press release). March 27, 2019.

New York Attorney General’s Office (N.Y. AG). 2012a. “A.G. Schneiderman Announces Arrest of Garment Factory Owner for Witness Tampering” (press release). February 2, 2012.

New York Attorney General’s Office (N.Y.AG). 2012b. “AG Schneiderman Announces Guilty Plea of Home Health Agency Owner for Failing to Pay Workers $300,000 in Wages.” (press release). October 4, 2012.

New York Attorney General’s Office (N.Y. AG). 2013. “A.G. Schneiderman Announces Arrest of Construction Firm Owner for Underpaying Workers and Laundering Stolen Wages” (press release). February 4, 2013.

New York Attorney General’s Office (N.Y. AG). 2014a. “A.G. Schneiderman Obtains Jail Sentence for Owner of Movie Theater Cleaning Company That Underpaid Workers” (press release). January 17, 2014.

New York Attorney General’s Office (N.Y. AG). 2014b. “A.G. Schneiderman Announces Conviction of Construction Boss for Underpaying Workers on Project at JFK Airport” (press release). November 20, 2014.

New York Attorney General’s Office (N.Y. AG). 2014c. A.G. Schneiderman Secures Criminal Conviction of Employers in Child Labor Case, (press release). December 11, 2014.

New York Attorney General’s Office (N.Y. AG) 2015a. “A.G. Schneiderman and U.S. Department of Labor Announce Criminal Charges against, and Civil Settlement with, Papa John’s Franchisee for Wage Theft” (press release). July 15, 2015.

New York Attorney General’s Office (N.Y. AG) 2015b. “A.G. Schneiderman and U.S. Department of Labor Announce Jail Time For Bronx Papa John’s Franchisee Convicted of Wage Theft” (press release). November 16, 2015.

New York Attorney General’s Office (N.Y. AG). 2018. “A.G. Schneiderman Announces Guilty Pleas and Convictions of Three Queens Construction Companies for Failing to Pay 150 Workers Over $370,000 in Wages” (press release). February 7, 2018.

New York Attorney General’s Office (N.Y. AG). 2019. “Attorney General James Announces Sentencing of Cortland County Farmer Following Death of 14-Year-Old Employee” (press release). January 19, 2019.

New York Attorney General’s Office (N.Y. AG). n.d. “Criminal Enforcement of Labor Laws: Prevailing Wage (webpage). Accessed April 7, 2021.

New York County District Attorney (NY Cty. DA). 2017. “DA Vance Invests $11.8 Million in Services for Historically Underserved Victims of Crime” (press release). April 26, 2017.

New York County District Attorney (NY Cty. DA). 2018. “DA Vance, Partners Announce Assault Charges in Harlem Construction Site Incident; Warn Industry About Increasingly Popular ‘Mini Cranes’” (press release). November 8, 2018.

New York State Division of Criminal Justice Services (NYS DCJS). 2015. “Governor Cuomo Announces More than $14 Million to Help Prosecutors Target Tax and Public Benefits Fraud.” (press release). February 19, 2015.

New York State Division of Criminal Justice Services (NYS DCJS). 2020. Communications between author and agency. Notes on file with author. November 27, 2020.

New York State Division of Criminal Justice Services (NYS DCJS). 2021. “Crimes Against Revenue Program (CARP)” (website). Accessed April 10, 2021.

New York State Legislature. (NYS Leg.) 2019. Accepting and Appropriating 100% Grant Funds Received from the New York State Division of Criminal Justice Services to the Suffolk Country District Attorney’s Office, Under the Crimes Against Revenue Program. Resolution No. 1018 -2019. November 6, 2019

Oravetz, Janet. 2019. “Boulder Man Accused of Failing to Pay Workers, Threatening to Report them to ICE.” 9News. November 15, 2019.

Ormiston, Russell, Dale Belman, and Mark Erlich. 2020. An Empirical Methodology to Estimate the Incidence and Costs of Payroll Fraud in the Construction Industry. Institute for Construction Economics Research, January 2020. page 3.

Pace, Eli. 2019a. “Employer Charged with Manslaughter in Worker’s Death at Colorado Construction Site.” Post Independent, August 23, 2019.

Pace, Eli. 2019b. “Avon-Based Employer Charged with Manslaughter in 2018 Worker’s Death at Granby Construction Site.” Greeley Tribune, August 23, 2019.

Pennsylvania Attorney General’s Office (Pa. AG). 2019. “Central Pennsylvania Contractor Charged for Theft of Workers’ Wages and Benefits” (press release). September 27, 2019.

Pennsylvania Attorney General’s Office (Pa. AG). 2021. “AG Shapiro Announces Multi-Million Dollar Theft Charges Against State College Contractor” (press release). April 8, 2021.

Philadelphia District Attorney’s Office (Phil. DA). 2021. “DAO Worker Protection Unit Charges Plumbing Contractor for Misappropriating Union Fees” (press release). January 25, 2021

Piore, Michael J. and Schrank, Andrew. 2018. Root Cause Regulation: Protecting Work and Workers in the Twenty-First Century, Harvard University Press, 2018.

Queens District Attorney (Queens DA). 2020. “Queens Contractor and His Business Plead Guilty to Violating Prevailing Wage Labor Laws and Stealing More than $1.5 Million from Workers” (press release). September 22, 2020.

Ransom, Jan. 2020a. “Harvey Weinstein is Found Guilty of Sex Crimes in #MeToo Watershed,” New York Times, February 24, 2020.

Ransom, Jan. 2020b. “Harvey Weinstein’s Stunning Downfall: 23 Years in Prison.” New York Times, March 11, 2020.

Ramirez, Mary. 2018. “How To Prosecute Wage Theft: A Training for Prosecutors & Investigators” (event invitation). December 13, 2018.

Restaurant Opportunities Centers (ROC) United and Forward Together. 2014. The Glass Floor: Sexual Harassment in the Restaurant Industry. October 6, 2014.

Reyes, Juliana Feliciano. 2019. “Philly DA’s Office Launches a Unit to Prosecute Employers for Crimes Against Workers.” Philadelphia Inquirer, October 8, 2019

Reyes, Juliana Feliciano. 2021. “Delaware County DA is Charging a Contractor with Misclassifying Its Workers.” Philadelphia Inquirer, January 11, 2021.

Rhinehart, Lynn, and Celine McNicholas. 2021. Shortchanged—Weak Anti-Retaliation Provisions in the National Labor Relations Act Cost Workers Billions. Economic Policy Institute, April 2021.

Rhinehart, Lynn, Lane Windham, and Lawrence Mishel. 2020. Explaining the Erosion of Private-Sector Unions: How Corporate Practices and Legal Changes Have Undercut the Ability of Workers to Organize and Bargain. Unequal Power, Economic Policy Institute, November 2020.

Rhode Island Attorney General’s Office (R.I. AG) 2019. “Lincoln Man Arrested on Wage Theft Charges After Joint Investigation by RIAG, RISP, and DLT” (press release). September 23, 2019.

Rhode Island Attorney General’s Office (R.I. AG). 2020. “Attorney General Charges Former Owner of Cleaning Company Wage Theft and Workers’ Compensation Insurance Fraud” (press release) July 9, 2020.

Rhode Island Attorney General’s Office (R.I. AG). 2021. “AG Neronha Seeks to Strengthen Penalties for Wage Theft, Labor Violations” (press release). February 24, 2021.

Romero, Dennis. 2010. “Brothers Benny and Nissan Pirian Get One Year in Jail for Underpaying, Overworking Car Wash Employees.” LA Weekly. August 17, 2010.

Rosado Marzán, César F. 2020. “Wage Theft as Crime: An Institutional View.” Journal of Law & Society 300 (2020), U Iowa Legal Studies Research Paper No. 2021-02. Accessed April 7, 2021.

Rosenthal, Ann. Death by Inequality: How Workers’ Lack of Power Harms Their Health and Safety. Economic Policy Institute, April 2021.

Rushton, Geoff. 2021. “State College Contractor Gets Jail Time After Pleading Guilty to Wage Theft Charges.” StateCollege.com. April 26, 2021.

Ryan, Kate. 2017. “Collateral Consequences: Brooklyn DA Seeks to Protect Immigrant Defendants from Deportation,” WNYC News. December 12, 2017.

San Diego District Attorney’s Office (S.D. DA). 2021. “New Workplace Justice Unit to Protect Workers’ Rights” (press release). February 22, 2021.

San Francisco District Attorney’s Office (S.F. DA). 2020. “District Attorney Launches New Economic Crimes Unit to Protect Workers’ Rights” (press release). April 21, 2020.

Schrank, Andrew, and Jessica Garrick. 2013. Mexican Immigrants and Wage Theft in New Mexico. Department of Sociology, University of New Mexico and Somos Un Pueblo Unido, August, 2013.

Sen, Aditi. 2016. By a Thousand Cuts: The Complex Face of Wage Theft in New York. Center for Popular Democracy, November 2016.

Sernoffsky, Evan. 2018. “2 Charged in Death of Forklift Operator at San Francisco Lumber Company.” SFGate, May 7, 2018.

Shaw, Elyse, Ariane Hegewisch, and Cynthia Hess. 2018. “Sexual Harassment and Assault at Work: Understanding the Costs,” Institute for Women’s Policy Research Briefing Paper. October 2018.

Shields, Michael. 2019. Wage Theft: A Quiet Crisis in Ohio. Policy Matters Ohio, April 10, 2019.

Shierholz, Heidi. 2020. “EPI Comments on Independent Contractor Status Under the Fair Labor Standards Act.” Comments submitted on behalf of the Economic Policy Institute to Amy DeBisschop, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, October 2020.

Shierholz, Heidi, and Margaret Poydock. 2021. “EPI Comments on the Rescission of the Joint Employer Rule.” Public comments submitted to Amy DeBisschop, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, April 12, 2021.

Smith, Annie. 2021. “The Underprosecution of Labor Trafficking” South Carolina Law Review, 72 S.C. L. Rev. 477, January 2021.

Steinzor, Rena. 2015. Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction. Cambridge University Press, 2015.

Stiffler, Chris. 2019. Stolen Labor: Wage Theft in Colorado. Colorado Fiscal Institute, September 2019.

Stone, Katherine V.W. and Alexander J.S. Colvin. 2015. The Arbitration Epidemic: Mandatory Arbitration Deprives Workers and Consumers of Their Rights. Economic Policy Institute, December 2015.

Suffolk County District Attorney’s Office (Suffolk Cty. DA). 2020a. “Gas Station Owner Arrested for Allegedly Exploiting Workers, Threatening Retaliation Against Immigrant Employees” (press release). December 15, 2020.

Suffolk County District Attorney’s Office (Suffolk Cty. DA). 2020b. “DA Sini & DA’s Labor Advisory Board Announce Arrest of 8 Individuals and 9 Corporations in Labor Crime Crackdown” (press release). March 9, 2020.

Svoboda, Haleigh. 2011. “Enforcement Is Next Task for Law on Wage Theft.” New York Times, October 29, 2011.

Travis County Sheriff’s Office (Travis CSO). 2021. “Online Citizen Report Filing” (website). Accessed April 10, 2021.

U.S. Department of Homeland Security (U.S. DHS). 2019. U Visa Law Enforcement Resource Guide, 2019.

U.S. Department of Justice (U.S. DOJ). 2020. “Justice Department Awards Nearly $101 Million to Combat Human Trafficking.” (press release). September 21, 2020.

U.S. Department of Justice (U.S. DOJ). N.d. “Partnerships to Address Labor Trafficking” (web page, Community Oriented Policing Services). Accessed May 10, 2021.

U.S. Department of Labor, Occupational Safety and Health Administration (U.S. DOL-OSHA). n.d.a. (U.S. federal government website). Accessed April 6, 2021.

U.S. Department of Labor, Occupational Safety and Health Administration (U.S. DOL-OSHA). n.d.b “State Plans” (web page). Accessed April 6, 2021.

U.S. Department of State. 2021. “Understanding Human Trafficking” (fact sheet). January 2021.

United States Government Accountability Office (U.S. GAO). 2020. “Workplace Sexual Harassment: Experts Suggest Expanding Data Collection to Improve Understanding of Prevalence and Costs,” GAO-20-564 (September 2020).

Villanueva, Alex. 2021. “Wage Theft Thrives in Secrecy. Here’s How My Office Is Working to Stop It.” Washington Post, March 23, 2021.

Vosseller, Bob. 2019. “Ocean County Contractor: 3 Years for Fraud.” Jersey Shore Online, September 6, 2019.

Warsmith, Stephanie. 2019. “Akron Construction Company Owner Sentenced to 3 Years in Prison for Employee’s Death in a Fall.” Akron Beacon Journal, updated September 9, 2019.

Washington State Attorney General’s Office (Wash. AG). 2018. “Contractor Sentenced for Criminal Wage Theft, False Reporting of Workers’ Comp Payments.” July 27, 2018.

Weil, David, and Amanda Pyles. 2007. “Exploring the Complaints and Compliance Gap Under U.S. Workplace Policies”, in LERA (ed.): Proceedings of the 59th Annual Meeting, January 5–7 2007, Chicago, Illinois. Labor and Employment Relations Association Series. Champaign, IL, LERA, pp. 168–181.

Weil, David. 2010. “Improving Workplace Conditions Through Strategic Enforcement: A Report to the Wage and Hour Division.” May 2010. Available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/strategicEnforcement.pdf.

Weil, David. 2014. The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It. Cambridge, Mass.: Harvard University Press, 2014.

Westchester County District Attorney. 2021. “DA Rocah Announces Multilingual Hotline: 914-995-TIPS.” (press release). March 16, 2021.

Xu, Lisa, and Mark Erlich. 2019. Economic Consequences of Misclassification in the State of Washington. Harvard Law School Labor and Worklife Program, December 2019.

Yakin, Heather. 2019. “Crackdown on Labor Crimes in Region Intensifies.” Times Herald-Record, October 17, 2019.

But in reality, the franchisees can barely survive, the company keeps the tips, the training is bogus, and the promised job is nonexistent.

Some public enforcement agencies (and even private lawyers) have recently attacked corporate misconduct of this sort by enforcing laws traditionally used to protect consumers in order to address unfair and deceptive labor market practices that target working people, often immigrants and people of color. More enforcement agencies and lawyers should follow their lead. Public enforcement agencies that focus on enforcing consumer protections, including federal agencies, attorneys general, and state and local consumer offices, should take an expansive view of their mission, and take action to protect worker-consumers in their often-complex relations with large corporations that use abusive and predatory practices.

A few recent cases provide examples of how this can be done.

Earlier this month, Washington State Attorney General Bob Ferguson used consumer fraud laws to sue National Maintenance Contractors, a janitorial company that, according to the complaint, exploited immigrant workers by selling them franchises that seemed to offer the opportunity to become business owners, but in fact left workers making subminimum wages and paying grossly excessive fees.

Last year, District of Columbia Attorney General Karl Racine recovered $2.5 million from DoorDash, including $1.5 million to be distributed to workers. His office had filed a consumer fraud lawsuit against the company based on misrepresentations to consumers about how their tips would be used. DoorDash effectively used consumer tips to satisfy its own promised payments to workers, a practice that was deceptive and misleading to customers, who intended tips to increase worker pay.

Along similar lines, in 2020, the Federal Trade Commission (FTC) announced an eye-popping $61.7 million settlement involving Amazon Flex for its handling of tips meant for delivery drivers. The enforcement theory in this case was also that Amazon was engaging in “unfair or deceptive” practices, this time directed at workers, because of the assurances that Amazon had made to workers that they would receive all their tips.

In the above cases, there was also an argument that the workers were misclassified as “independent contractors” or franchisees, and should have been employees entitled to minimum wage, overtime, and of course, all of their tips. (In fact, enforcement agencies have brought employment law challenges against platform companies: the attorneys general of California and Massachusetts sued Uber and Lyft, the San Francisco and Los Angeles district attorneys sued the platform housecleaning company Handy, and the San Diego City Attorney sued grocery delivery company Instacart.) While use of consumer laws to protect workers does not address misclassification directly, it does allow public enforcement agencies to obtain relatively swift relief for basic consumer protection violations that cause workers substantial harm: DoorDash and Amazon deceived workers and consumers about tips, and National Maintenance Contractors preyed on workers who were also prospective franchise purchasers by convincing them to buy a predatory product.

Another example relates to noncompete agreements. In 2017, the Illinois Attorney General sued a check-cashing company based on its inappropriate use of provisions preventing employees from getting a job with a competitor. These “noncompete” agreements, increasingly used in a wide range of workplaces, have been shown to restrain workers’ job mobility and suppress wages, and many states are now passing laws to prevent their abuse. The Illinois AG’s lawsuit opposed these noncompetes on several grounds, including under consumer fraud laws at the core of the AG office’s enforcement authority. The complaint asserts that by requiring legally unenforceable noncompetes of low-wage workers, who believe the contracts are valid, the company’s conduct violated consumer laws because it was deceptive. (And also, according to the lawsuit, “immoral, unethical, oppressive, and unscrupulous.”) In other words, the employer engaged in unfair and deceptive acts in the marketplace.

This enforcement strategy has several benefits. In many instances, by using consumer protection laws that prohibit “unfair and deceptive acts and practices,” agencies that don’t have explicit authority to enforce labor standards protections nonetheless have a powerful hook to attack corporate efforts to undermine worker power. The FTC doesn’t have jurisdiction to enforce minimum wage laws against Amazon for misclassifying its Flex drivers, but it can protect workers under its general authority to go after corporate fraud.

Using consumer laws to protect workers can also allow for immediate relief for workers by temporarily sidestepping more complex questions that may arise when enforcing more traditional labor standards laws. Moreover, this approach directs public enforcement resources to emerging challenges affecting workers that fall outside of traditional labor agencies’ authority.

In these extremely challenging times for workers, with stagnant wages, routine retaliation for union organizing, inadequate enforcement resources, and the terrifying threat of workplace exposure to COVID-19, our country’s workers need all the champions they can get. And consumer agencies would be neglecting an important part of their work if they take a rigid and overly narrow understanding of who their agencies exist to protect. Consumer protection agencies should take action to address a range of complex practices at the intersection of the consumer and labor markets.

Examples of additional potential cases abound. Jobseekers enroll in training to be security guards or long-haul truckers based on the promise of a solid job, and end up deep in debt, sometimes with no job to speak of. Temp agencies suggest that they’re an on-ramp to full-time employment, when in reality, almost no one gets a full-time job, likely in part because of conversion fees—hidden from workers—that job placements must pay in order to hire a temp worker as a regular employee. Students enter so-called “income share agreements” with finance companies under which the company pays the students’ tuition in exchange for a share of their income going forward. And employers increasingly offer (either directly or through third parties) short-term loans or “early wage access” programs that can operate like payday loans to allow workers access to quick cash but that come with high fees and effective interest rates.

In cities like New York, with sky-high unemployment rates following the onset of COVID-19, online job placement agencies and training schools have become a common scam. Construction workers dished out hundreds of dollars for online Occupational Safety and Health Administration (OSHA) training courses, offered by employment agencies, that promised a job at the end of the program—illegal under NYC law because such agencies cannot charge jobseekers for classes, trainings, or other services. Other jobseekers attended eyebrow microblading schools offered online, which are useless for a job that requires a Department of Health license.

In some jurisdictions, policymakers should update consumer protection laws to ensure that they reach arrangements where a business provides credit to its workers to purchase training or tools of the trade. Some consumer protections don’t apply to business-to-business transactions and have thus been presumed to exclude transactions between misclassified workers and the companies that employ them. For example, New York City’s consumer protection law covers goods, services, credit, and debts “primarily for personal, household, or family purposes.” Treating car loans from Uber to its drivers as business-to-business transactions exempt from consumer protection laws would leave drivers in limbo, without the protection of employment or consumer laws. Statutes should also explicitly protect limited English proficient worker-consumers, who are often the target of deceptive advertising and abusive contracts with usurious interest rates.

Finally, all consumer agencies—even those without jurisdiction or resources to aggressively enforce consumer protection laws when worker-consumers are harmed—can play a role in preventing these scams, through robust and multilingual public education and strategic use of outreach and media. This may involve agencies stepping out of their traditional roles to get the job done. For example, to enforce New York state’s safe business reopening guidelines, New York City recently deployed multijurisdictional teams of consumer protection inspectors, as well as teams from the departments of buildings and health, to respond to consumer and worker complaints.

Use of consumer laws to protect workers is a necessary addition, not an alternative, to aggressive and well-resourced enforcement of worker protection laws and organizing to increase workers’ power. But in our constantly evolving labor market, and in the face of post-pandemic life uncertainty, we must ensure that our legal system catches up. Workers, consumers, and the public must demand creative and expansive uses of the laws in the books to fight these multifaceted abuses of corporate power.

One particular Ginsburg dissent is now driving a movement to shatter the notion that employees and employers have equal bargaining power.

In 2018, Ginsburg highlighted the inherent power imbalance in employment contracts as the key fault line between liberal and conservative legal opinion on employment regulation in her dissent in Epic Systems v. Lewis. By a 5–4 majority, the Supreme Court held that an employer may lawfully require its employees to agree, as a condition of employment, to take all employment-related disputes to private arbitration on an individual basis, and to waive their right to participate in a class action or class arbitration, i.e., collective action.

The majority opinion, written by Justice Gorsuch, framed the issue as one of “freedom to contract” between equal parties:

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective ac­tions, no matter what they agreed with their employers?

In her dissent, Ginsburg wrote:

To explain why the Court’s decision is egregiously wrong, I first refer to the extreme imbalance once prevalent in our nation’s workplaces, and Congress’ aim in the NLGA [Norris-LaGuardia Act] and the NLRA [National Labor Relations Act] to place employers and employees on a more equal footing.

…

Recognizing employees’ right to engage in collective employment litigation and shielding that right from employer blockage are firmly rooted in the NLRA’s design. Congress expressed its intent, when it enacted the NLRA, to ‘protect the exercise by workers of full freedom of association,’ thereby remedying ‘the inequality of bargaining power’ workers faced.

Ginsburg appropriately ridiculed the majority’s analysis, noting:

The Court’s opinion opens with the question: ‘Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?’ Were the ‘agreements’ genuinely bilateral? Petitioner Epic Systems Corporation e-mailed its employees an arbitration agreement requiring resolution of wage and hours claims by individual arbitration. The agreement provided that if the employees ‘continue[d] to work at Epic,’ they would ‘be deemed to have accepted th[e] agreement.’

Her analysis “was apt—not just because the court’s decisions have undermined the enforcement of democratically adopted worker protections, but also because those decisions have rested on a view of consent that ignores the imbalance of bargaining power in the workplace,” writes Samuel Bagenstos, a former Ginsburg clerk and the author of a forthcoming paper on the “Lochner era,” named for the 1905 Lochner v. New York labor case, which led to a period in which judges invalidated labor laws based on their view that those laws prevented employers and workers from striking the best deal they could with each other.

Bagenstos’s “Lochner era” paper is part of a new EPI initiative called the Unequal Power project that highlights the flawed but pervasive assumption that workers and employers have equal power.

There’s a need to make Justice Ginsburg’s assessment of “unequal workplace bargaining power” the core framework in economics, employment law, philosophy, and political science, says Lawrence Mishel, distinguished fellow at the Economic Policy Institute, who is heading up the project.

The Unequal Power project, to be launched on October 7, is dedicated to Ginsburg because her dissent in Epic Systems inspired the initiative.

“The core of the project is to replace the idea that employers and employees are on an equal footing in the labor market (and therefore anything that ‘interferes’ in the labor market creates inefficiencies and ends up doing more harm than good) with an understanding that an inherent imbalance of power exists in favor of employers over their workers,” notes Mishel.

“This imbalance,” he continues, “can only be addressed with policies that provide countervailing power to workers. Identifying mechanisms that stratify the workforce through systemic racism and sexism will be presented as an inseparable component of this initiative. This would be a return to a framework of an unbalanced labor market that guided economists, policymakers, and the courts for important periods of American history, but was actively suppressed with free market assumptions becoming embedded in the law.”

Ginsburg understood this and the history. In her dissent, she wrote:

Forced to face their employers without company, employees ordinarily are no match for the enterprise that hires them. Employees gain strength, however, if they can deal with their employers in numbers. That is the very reason why the NLRA secures against employer interference employees’ right to act in concert for their ‘mutual aid or protection.’

Indeed, there are many present-day examples of adverse actions by employers that shine a light on the worker-employer imbalance, many of which are remedied only when workers act in concert.

Ironically, a recent one involved Epic Systems, the Verona, Wisconsin, health care software firm at the heart of the aforementioned case.

In August, as COVID-19 cases were rising in Wisconsin, Epic Systems management made the decision to bring back thousands of its employees who had been working remotely because of the pandemic, even those who were considered high risk.

To justify the change, Epic CEO Judy Faulkner wrote that “It’s hard to retain our culture when working from home.”

Hundreds of workers complained about the plan on social media, and CBS Sunday Morning did a segment on the outcry on August 4. News also spread that employees were looking to unionize as a result, according to an August 5 article in The Capital Times in Madison, Wisconsin.

On August 12, Epic Systems’ management reversed their decision in an email to employees saying workers could continue to work from home, at least through the end of the year. In the email, Faulkner stated that “we appreciate the constructive feedback from many of you.” That, as Ginsburg once said, shows the importance of employees gaining strength in numbers.

The report, authored by Alexander J.S. Colvin from Cornell University and EPI’s Policy Director Heidi Shierholz, is a comprehensive look at the extent of noncompete agreements, which are employment provisions that ban workers at one company from working for, or starting, a competing business within a certain period of time after leaving a job.

The report uses data from a national survey of private-sector U.S. employers in which 49.4% of responding establishments indicated that at least some of their employees were required to enter into a noncompete agreement. Nearly a third (31.8%) of responding establishments indicated that all their employees were required to enter into a noncompete agreement.

“Noncompetes limit competition among businesses and stifle workers’ wage growth—given that changing jobs is where workers often get a raise. These restrictive agreements are not only inflicted upon high-wage workers, but also low-wage workers living paycheck-to-paycheck,” said Colvin. “The rise of noncompetes is likely an important contributor to stagnant wages and declining job mobility in the United States in recent years.”

The report analyzes noncompetes by establishment size, state, industry, average wage level, and typical education level. Additional key findings include:

• Establishments with high pay or high levels of education among workers are more likely to use noncompetes, but noncompetes are also common in workplaces with low pay and low levels of education. More than a quarter (29.0%) of responding establishments with an average hourly wage below $13.00 require noncompetes for all their workers.
• Noncompetes are widely used nationwide, with more than 40% of establishments in each of the 12 largest states having at least some employees covered by noncompetes. This includes 45.1% of establishments in California, despite noncompetes being unenforceable under California state law.
• More than half (53.7%) of responding establishments that have mandatory arbitration procedures, which bar employees from going to court to resolve workplace disputes, also require at least some of their employees to enter into noncompete agreements.

“Noncompetes are part of a disturbing trend of employers requiring workers to sign away their rights. As employers increasingly use restrictive contracts like noncompetes and mandatory arbitration to undermine workers’ rights, there is an urgent need for stronger worker protections, including prohibiting noncompete agreements,” said Shierholz.

Colvin and Shierholz recommend a variety of policy solutions to prohibit noncompete agreements, including federal and state legislation and regulation from the Federal Trade Commission (FTC). Congress is currently considering bipartisan legislation, the Workforce Mobility Act of 2019, to prohibit noncompete agreements, while the FTC is reviewing a petition seeking a rule prohibiting noncompete agreements as an unfair method of competition.

In March, the House passed the Paycheck Fairness Act, which would strengthen the Equal Pay Act of 1963 and guarantee that women can challenge pay discrimination and hold their employers accountable. Since the passage of the Equal Pay Act of 1963, millions of women have joined the workforce. However, more than five decades later, women are still earning less than their male counterparts. On average in 2018, women were paid 22.6 percent less than men, after controlling for race and ethnicity, education, age, and location. This gap is even larger for women of color, with black and Hispanic women being paid 34.9 and 34.3 percent less per hour than white men, respectively—even after controlling for education, age, and location. The Paycheck Fairness Act is crucial legislation in reducing these gender pay gaps and guaranteeing women receive equal pay for equal work.

In May, the House passed the Equality Act, which prohibits discrimination in housing, the workplace, and other settings on the basis of sex, gender identity and sexual orientation. While many states have enacted laws to protect LGBTQ Americans against discrimination regarding sexual orientation and gender identity, there is no federal law that would provide the same protections. There is, however, a glaring need: nearly two-thirds of LGBTQ Americans have experienced discrimination in their personal lives. The Equality Act amends the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity, and the Jury Selection and Service Act to explicitly include sexual orientation and gender identity as protected characteristics. The Equality Act is a pivotal step toward ensuring equality for all Americans.

In addition to the bills the House has already passed this session, a number of others that have been introduced that would restore and strengthen workers’ rights.

• Protecting the Right to Organize (PRO) Act: Unions are critical for increasing wages, improving working conditions, and combating income inequality in America. However, the erosion of labor laws and attacks on unions by special-interest groups have weakened union membership to just 10.7 percent in 2018. The result has been stagnant wages for working people, unsafe workplaces, and rising inequality. The Protecting the Right to Organize (PRO) Act, introduced by Rep. Bobby Scott (D–Va.) and Senator Patty Murray (D–Wash.), would strengthen the federal laws that protect workers’ right to organize a union and collectively bargain over wages, benefits, and better working conditions.
• Public Service Freedom to Negotiate Act: Under current federal law, public service workers do not have the freedom to join in union and collectively bargain over wages or working conditions. The Public Service Freedom to Negotiate Act, introduced by Rep. Matt Cartwright (D–Penn.) and Sen. Mazie Hirono (D–Hawaii), would require states to provide public-service workers the freedom to join in union and collectively bargain. Ultimately, the bill would provide 17.3 million public employees a national standard of bargaining rights.
• Forced Arbitration Injustice Repeal (FAIR) Act and the Restoring Justice for Workers Act: According to a recent report by EPI and the Center on Popular Democracy, more than 80 percent of workplaces will subject their workers to mandatory arbitration with class and collective action waivers by 2024. The FAIR Act, introduced by Rep. Hank Johnson (D–Ga.) and Sen. Richard Blumenthal (D–Conn.), would eliminate forced arbitration in employment, consumer, and civil rights cases. The Restoring Justice for Workers Act, introduced by Reps. Jerrod Nadler (D–N.Y.) and Bobby Scott (D–Va.) and Senator Patty Murray (D–Wash.), would ban mandatory arbitration and class and collective action waivers in labor and employment matters.

• Restoring Overtime Pay Act: In June, Reps. Mark Takano (D–Calif.) and Bobby Scott (D–Va.) and Sherrod Brown (D–Ohio) and Patty Murray (D–Wash.) introduced the Restoring Overtime Pay Act, which strengthens overtime protections by attaching the salary level to the 40th percentile of earnings of full-time salaried workers in the lowest wage census region. The bill also requires automatic updates every three years to ensure the level remains in line with the changes in our economy. If Congress were to enact the bill in 2019, the overtime salary level would increase from $23,660 per year to roughly $51,000 per year, making roughly 4.6 million workers newly eligible for overtime pay.
• Wage Theft Prevention and Wage Recovery Act: Wage theft—the of failure of employers to pay workers money they are legally entitled to—is a widespread and deep-rooted problem that directly harms millions of U.S. workers each year. According to a recent study by EPI, employers steal over $15 billion from American workers’ paychecks each year through minimum wage violations alone. This month, Rep. Rosa DeLauro (D–Conn.) and Sen. Patty Murray (D–Wash.) introduced the Wage Theft Prevention and Wage Recovery Act, which would combat wage theft by strengthening current federal law and empowering employees to recover their lost wages. If enacted, the bill would ensure that workers across America receive a fair day’s wage for a fair day’s work and empower them to recover the lost wages they deserve.

The House has taken action on key workers’ rights measures. Chief among these is the Raise the Wage Act. When the Senate returns from recess, Majority Leader McConnell should allow votes on this critical bill. If he does not, he is preventing a raise for millions of U.S. workers. Further, the House should prioritize passage of the PRO Act, the Public Service Freedom to Negotiate Act, and the FAIR Act. Each of these measures would help unrig a system that is tilted toward corporate interests and help to make our economy more just.

The report—touting arbitration’s supposed benefits for workers—arrived just in time to be cited at a House hearing last month. That’s unlikely to be the last of it. The report will surely be presented by corporate lobbyists to a coterie of undecided legislators—legislators who care about access to justice and who are genuinely concerned about the impact of forced arbitration, but who also want to be responsive to the concerns raised by businesses that use it. The danger is that these legislators will believe the report’s spurious conclusion that arbitration is better for workers and vote accordingly.

Some initial skepticism is obviously in order. With its history of opposing reforms like paid family leave, a higher minimum wage, and strong overtime protections, the U.S. Chamber of Commerce is not an institution that is generally known as a champion of workers’ rights. And the report (entitled “Fairer, Faster, Better”) was written by a consulting firm that’s published previous reports like “Regulations: the more is not the merrier” and “The Regulatory Impact on Small Business: Complex. Cumbersome. Costly.”

But whatever the source, it’s important to engage with the substance, which is why we decided to take a deep dive. We discovered glaring errors, most of which we discussed in our American Prospect piece: the report’s omission of class actions and state court cases from its litigation data; its reliance on the mean rather than the median in its conclusions; its failure to account for cases that never come to light because of forced arbitration or to consider deterrence and injunctive relief; and its failure to engage with decades of prior academic studies on the topic.

However, there are even more in-the-weeds problems in addition to those in our op-ed. Here are a few:

Arbitration’s lack of transparency results in problems with the Chamber’s report. The available information on arbitration only reports the amount claimed by workers for about one-third of the cases, obstructing anyone’s ability to assess the real meaning of the results (since the amount awarded should be viewed in relation to the amount claimed). And in nearly one quarter of the 1030 arbitration cases in the study with a final decision, “information about the prevailing party was unknown or… there were awards to both plaintiffs and defendants.”

In part because of the limited sample resulting from the lack of transparency, the total number of arbitration decisions included in the report’s primary analysis was miniscule: 251 cases in which employees initiated and prevailed, over fifty states in a five-year period. This is out of 10,486 arbitration cases in a sample that’s already shrunk by the omission of class actions and state court cases. Is this sample sufficient to draw any broad conclusions? Probably not.

Also, the information about “awards to both plaintiffs and defendants,” while glossed over by the report’s authors, is in fact noteworthy. It’s pretty uncommon, if not highly unusual, for employer-defendants to get awards from courts in litigation cases initiated by ordinary employee-plaintiffs. But the arbitration results suggest that this may not be the case in arbitration. When comparing which of two options is better for workers (arbitration or litigation), if one seems to carry real risk of the worker owing money surely this factor merits discussion or at least further investigation.

The report emphasizes that most workers in the arbitration cases were not high earners. However, most employees in the arbitration sample were much higher earners than the general public. Of the arbitration sample’s employee plaintiffs, 21 percent made over $100,000, and 7 percent made over $250,000. In the general population of wage earners in 2014 (the first year of the period of the study) the shares earning over $100,000 and over $250,000 were 8 and 2 percent, respectively. So there were more than 2½ times as many high earners—and 3½ times as many very high earners—in the arbitration case sample compared with the general public. When higher-paid employees have employment disputes, their claims for lost wages, and therefore their recoveries, will logically be higher than lower-paid workers. This may make it look like workers “do better” in arbitration when actually they may just be higher earners in the first place. (Note, however, that the report does not include comparable information about plaintiffs in litigation, thus preventing any comparison of the two in this regard.)

As we explained in the American Prospect, the report’s methodology compares the results of employment arbitration with the results of litigation for the years 2014–2018, comparing cases that were initiated by employees and terminated with awards during that period. However, including only cases that were terminated with awards is misleading. Often in employment litigation, an employer files a pre-trial motion, like a motion to dismiss or motion for summary judgment. If the employer loses these motions (especially summary judgment motions), cases commonly settle shortly thereafter; such motions are often the immediate precursor to a settlement. By only comparing cases that terminated with an award from the adjudicator, the report fails to consider the considerable benefit of litigation in this regard.

The skewing of results has a particularly strong impact in relation to summary judgment motions. A summary judgment motion disposes of a case only if the employer wins, but not if the employer loses. Therefore, if there’s a summary judgment motion, and the employer wins, the report would include that case as an “employer win.” But if there’s a summary judgment motion and the employer loses, the report would not include that case as an “employee win” even though in practice, it more often than not functionally has that impact. This approach misleadingly makes the employee success rate look much worse in litigation than it really is.

The report never actually explains what it means by “employment litigation.” There’s not any one “Employment Law.” Are the cases included minimum wage and overtime cases under the Fair Labor Standards Act? Discrimination or harassment cases under Title VII? What about cases brought under the Family and Medical Leave Act, or ERISA, or other statutes? Were retaliation claims included? This lack of clarity about what laws we’re talking about makes it hard to analyze the data.

The report is like an “I Spy” book for hard-headed economists and lawyers—there are problems on so many pages.

Which is not surprising. In the context of massive worker pushback and organizing against forced arbitration, it’s a red flag from the get-go when a Chamber affiliate argues that workers don’t know what’s in their own best interest.

In this case, that red flag is warranted. The Chamber’s report has numbers and charts and percentage signs, but lacks solid evidence supporting its position. Workers aren’t stupid or gullible. They know what’s in their own best interest: not having to give up their right to seek justice as a precondition of getting a job.

The percentage of workers whose employers require them to give up the right to go to court in exchange for their jobs has increased dramatically over the past 25 years, from just 2 percent in 1992 to over 55 percent in 2017. And that figure is climbing even higher in the wake of the Supreme Court’s 5-4 opinion in 2018 in Epic Systems Corp. v. Lewis, which said that employers can impose arbitration contracts on their workers even when one of the terms of the contract is that workers must bring their disputes one at a time and may not join forces with their colleagues to pursue claims collectively. A new report from EPI and the Center for Popular Democracy projects that by 2024, over 80 percent of private-sector, nonunionized workers will be subject to forced arbitration regimes that ban class or collective actions.

Despite its growing prevalence, many American workers still don’t know what arbitration is and don’t realize what rights they’re giving up when they sign the document (or click the button on a computer screen) saying they will resolve future disputes in this manner. But for the 14.7 million workers who belonged to a union in 2018, arbitration may not be such a foreign concept, because arbitration has been a fixture in most unionized workplaces for decades.

However, beyond the use of the word “arbitration,” the system that organized labor and management have long been using to resolve their disputes has almost nothing in common with the top-down, take-it-or-leave-it brand of arbitration to which the Supreme Court gave a seal of approval in Epic Systems. For one thing, arbitration in a unionized workplace is actually the result of an arms-length negotiation, where management and employee representatives jointly agree to the terms of the process. Because the details of labor arbitration are typically spelled out in a collective bargaining agreement, the bargaining process often builds in protections for employees, such as paid time off to participate in the arbitration, a multiple-level appeals process, and a say in selecting the arbitrator. But in Epic Systems-style arbitration, when the employer gets to set all the terms of the arbitration process and present them to workers as a fait accompli, those terms tend to be much more lopsided in the employer’s favor.

Moreover, in labor arbitration both the union representative and management representative participating in the arbitration tend to be familiar with the process. It is rarely the first rodeo for either party. This balance of experience substantially levels the playing field and increases the chances of success for the represented employee. By contrast, when each employee must arbitrate separately against the same employer, the employer has all the benefits of being a repeat player in the forum—access to more information, knowledge of the rules, sometimes even past practice before the same arbitrator—while the worker is trying to navigate the system for the first time. And these advantages have a measurable impact: workers fare decidedly worse in arbitrations against repeat player employers than they do when the two sides are more evenly matched in terms of experience.

In short, the union experience shows that arbitration can be a fair process for resolving disputes—when it is actually agreed to, and engaged in, by two parties with relatively equal bargaining power. But when the only choice an employee is given is to agree to arbitrate on the employer’s terms (with no ability to join forces with other affected workers) or find another job, for most workers that is the equivalent of no choice at all.

Justice Ginsburg wrote in her dissent in Epic Systems that Congress should step in to correct an opinion she described as “egregiously wrong.” And with the introduction of the Restoring Justice for Workers Act, several members of Congress are aiming to do just that. This legislation would undo the Epic Systems opinion by making it illegal for businesses to force workers to give up their right to band together in class or collective actions, and would also ban predispute arbitration of work-related disputes. In the spirit of the more balanced world of labor arbitration, the Restoring Justice for Workers Act allows for work-related disputes to be resolved in arbitration after they arise, but only if the agreement to go to arbitration is affirmatively accepted by the worker, with a mandatory review period and other safeguards to protect against any threats or coercion. Meanwhile, the FAIR (Forced Arbitration Injustice Repeal) Act, introduced by Representative Hank Johnson and Senator Richard Blumenthal, would ban predispute arbitration of work disputes as well as consumer, civil rights, and antitrust disputes. Passing one or both of these bills would go a long way towards empowering workers and restoring their ability to hold lawbreaking employers accountable.