The rules governing work in this country are rigged against working people from their first day on the job. The current legal and political framework favors corporate interests dedicated to rolling back worker protections and advancing business practices that leave fewer and fewer workers covered by existing laws. Those workers who remain covered by these protections are often required to sign away their labor and employment rights as a condition of employment. And, where workers do have protections on the job, the agencies responsible for enforcement lack the resources necessary to ensure that employers are playing by the rules. Most damaging to workers is the unrelenting attack on their ability to act collectively to improve their wages and working conditions. This assault on the right to collective action has stripped workers of meaningful leverage to change the system to ensure that working people have a voice in the workplace.

This rigged system has helped produce the inequality that characterizes the United States economy. For most of the last four decades, most working people in this country have seen their wages stagnate. However, those who already had very high wages are the exception—their wages have grown impressively. From 1979 to 2016, the wages of the top 1 percent grew nearly 150 percent, whereas the wages of the bottom 90 percent combined grew just 21.3 percent, roughly one-seventh as fast.1 This means there was an enormous upward redistribution of earnings from the bottom 90 percent to those at the top.

The erosion of workers’ bargaining power

There are many factors contributing to this economic inequality; however, the common thread that binds almost all of them is the erosion of the bargaining power of low- and middle-wage workers. This suppression of workers’ bargaining power has been so profound that even today’s 3.9 percent unemployment rate—quite low compared with historical averages—has not been enough to spur meaningful wage growth for most workers.

The situation of weak economic leverage for most workers is not the “unfortunate-but-inevitable” result of natural trends in technology and global integration; it is instead the product of decades of attacks on workers’ leverage. The laws designed to protect working people have been largely neglected by policymakers since they were passed—over 75 years ago in the case of our foundational statutes like the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA). Meanwhile, corporate interests have succeeded in getting policymakers to roll back key worker protections, and they have advanced business practices that ensure that fewer and fewer workers benefit from existing laws. The result of these attacks is that low- and middle-wage workers have little bargaining power to demand their fair share of the growing economic pie.

What is ‘First Day Fairness’?

First Day Fairness is the right of all workers to a fair system of work from their first day on the job. U.S. workers are essential contributors to economic growth in the U.S. and they deserve a fair share of that growth and a fair say in their working conditions. First Day Fairness requires a rebalancing of our current system to ensure that workers’ interests and concerns are served. It means that from the first day on the job working people can have a union in order to collectively bargain for better wages and working conditions. It means that workers know from the start how much they will be paid and when they will be paid; they know who their legal employer is; they are in a safe workplace; they have a predictable schedule and access to paid sick time; they can go to court if they are discriminated against; and they are not afraid of retaliation if they report issues at work. It also means that they have confidence that the government will enforce their workplace protections.

A multifront assault on workers’ rights requires a multifaceted response

There is an understandable desire among those seeking shared prosperity to agree on and advance one simple, bold, “big fix” to all our economic woes. What is the one way to reverse decades of widening economic inequality? What is the one way to restore workers’ rights and leverage in the workplace? What is the one way to close race and gender economic gaps?

These questions are spurring the development of many innovative policy reforms that we support. However, there is no single reform that can reverse the trends that have done so much to harm working people. Multiple reforms are needed to meaningfully address the decades-long campaign to disempower America’s workers. That campaign has been waged on multiple fronts, impacting federal and state policies, our judicial system, and our democracy itself. A systematic, wide-ranging policy agenda to shift economic leverage away from workers brought us into this current situation, and only an equally deliberate and expansive set of pro-worker policies will take us out.

Making the workplace fair for women and people of color

Women and workers of color suffer not only from the broad loss of bargaining power affecting all working people over the last four decades; they also face discrimination, occupational segregation, and other inequities related to racial and gender biases, which diminish their leverage even further. Studies show that women workers tend to be paid less than similar male workers, and black and Hispanic workers tend to be paid less than similar white workers.2 Women and racial and ethnic minority workers are also more likely to be concentrated in low-wage jobs with few benefits.3

As a result, people of color and women stand to gain more from policies that establish and maintain basic fairness from the first day on the job. Stronger minimum wages and other labor standards disproportionately affect women and racial and ethnic minorities. Unions help raise women’s pay, and help to close racial and ethnic wage gaps.4 Strengthening fair employment laws and their enforcement will provide crucial leverage for workers who are discriminated against on the basis of gender, race, and ethnicity.

The ‘First Day Fairness’ agenda

This agenda outlines a series of initial reforms focused on labor and employment policies, one of EPI’s core areas of focus for generating a fairer economy. These policies would ensure that the protections promised in our basic labor laws decades ago have been updated to meet the needs of workers in a modern context.

The best guarantee for a fair first day for workers is union representation and a collective bargaining agreement; consequently, much of what we advocate for in this agenda is designed to reverse decades of legal hostility aimed at unions and to boost union coverage. As a complement to these policies, we also propose a series of employment law reforms that will restore at least some of the lost bargaining power of workers.

Together these policies will help to unrig the system and ensure a fair first day for working people.

We must strengthen collective bargaining and grow workers’ ability to join together to increase their power

A recent poll found that 60 percent of adults have a favorable view of labor unions. However, as of 2017, only 10.7 percent of wage and salary workers were union members.5 This disconnect is the result of decades of fierce opposition to unions and collective bargaining, with employers exploiting loopholes in outdated labor law to defeat workers’ organizing efforts, while corporate lobbyists have blocked attempts at reform. We know unions are a significant force for a fair economy by examining the impact of their decline since the 1970s. As unions have declined, inequality between middle- and high-wage workers has grown: Figure A shows that as union membership has dropped, the top 10 percent’s share of overall income has risen. The erosion of union coverage has also meant the erosion of the significant boost unions provide to the earnings of black and Hispanic workers and women—a boost that occurs directly through collective bargaining but also by helping combat discrimination through correcting for salary discrepancies and establishing clear and transparent terms for advancement.6

Figure A

The following reforms aim to strengthen collective bargaining and increase worker power.

We must ensure basic job quality

Labor and employment standards set the minimum obligations that employers have to their workers. In recent decades there has been a concerted, cynical effort by corporate interests to convince lawmakers that these standards strangle economic growth and cost jobs. As a result, lawmakers have allowed these standards to erode dramatically—both through a failure to update existing standards so that they continue to provide a robust floor for job quality and through a failure to implement new standards to counteract evolving employer practices that wrest leverage from workers. As mentioned above, this erosion disproportionately impacts women and racial and ethnic minorities, who are more concentrated in low-wage jobs with few benefits. Further, this erosion harms collective bargaining efforts among unionized workers because it lowers the floor from which bargaining takes place.

We must protect workers from being forced to sign away their rights

In today’s labor market, more and more workers are being told by potential employers that if they want a job, they have to sign away important rights that help level the playing field between workers and employers. The proliferating employer practice of requiring workers to waive their rights as a condition of employment shifts even more economic leverage from workers to employers.

We must boost enforcement of all labor and employment standards

Employers steal billions from workers’ paychecks each year by misclassifying workers, paying less than legally mandated minimums, failing to pay for all hours worked, stealing tips from tipped workers, and not paying overtime premiums.29 Further, many employers fail to provide safe work environments: more than 5,000 fatal injuries and nearly 3 million nonfatal injuries and illnesses occur in the workplace each year.30 Additionally, discriminatory hiring, firing, harassment, promotions, and pay systematically disadvantage racial and ethnic minorities, women, people with disabilities, LGBTQ workers, and workers from other marginalized groups.

Endnotes

1. Lawrence Mishel and Julia Wolfe, “Wages Rose for the Bottom 90 Percent in 2016 as Those for Top 1 Percent Fell,” Working Economics (Economic Policy Institute blog), October 31, 2017.

2. Elise Gould, Jessica Schieder, and Kathleen Geier, What Is the Gender Pay Gap and Is It Real? Economic Policy Institute, October 2016; Economic Policy Institute, State of Working America Data Library, “Gender wage gap,” “Black–white wage gap,” and “Hispanic–white wage gap,” 2018.

3. Economic Policy Institute, State of Working America Data Library, “Wages by percentile,” “Health insurance coverage,” and “Pension coverage,” 2018.

4. Josh Bivens et al., How Today’s Unions Help Working People: Giving Workers the Power to Improve Their Jobs and Unrig the Economy, Economic Policy Institute, August 24, 2017.

5. Poll results come from Shiva Maniam, “Most Americans See Labor Unions, Corporations Favorably,” Fact Tank (Pew Research Center), January 30, 2017. The union membership rate comes from Bureau of Labor Statistics, “Union Membership (Annual) News Release,” January 19, 2018.

6. Josh Bivens et al., How Today’s Unions Help Working People: Giving Workers the Power to Improve Their Jobs and Unrig the Economy, Economic Policy Institute, August 24, 2017.

7. Josh Bivens et al., How Today’s Unions Help Working People: Giving Workers the Power to Improve Their Jobs and Unrig the Economy, Economic Policy Institute, August 24, 2017.

8. Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, Economic Policy Institute, May 2009. See also John Schmitt and Ben Zipperer, Dropping the Ax: Illegal Firings during Union Election Campaigns, Center for Economic and Policy Research (CEPR), March 2009.

9. Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, Economic Policy Institute, May 2009. See also Figure 1 of John-Paul Ferguson, “The Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999–2004.” Industrial and Labor Relations Review 62, no. 1 (October 2008): 1–18.

10. In this process, union and employer work with a mediator to arrive at contract terms; if they are unable to do so before the established deadline (e.g., within one year of the date the union is recognized), or if at any time in the process the mediator judges that one side is not acting in good faith, the contract terms are determined through binding arbitration.

11. Janelle Jones and Heidi Shierholz, Right-to-Work Is Wrong for Missouri: A Breadth of National Evidence Shows Why Missouri Voters Should Reject RTW Law, Economic Policy Institute, July 10, 2018.

12. Data from the Bureau of Labor Statistics, Work Stoppages Program (WSP), public data series accessed August 15, 2018, through the WSP Databases.

13. David Cooper, Raising the Minimum Wage to $15 by 2024 Would Lift Wages for 41 Million American Workers, Economic Policy Institute, April 26, 2017.

14. H.R. 15, 115th Congress (2017).

15. EPI calculations based on the Congressional Budget Office’s 10-Year Economic Projections (published August 2018) of the Consumer Price Index (CPI-U).

16. Currently, 29 states and D.C. have a minimum wage higher than the federal minimum wage. In addition, 42 localities have adopted minimum wages above their state minimum wage. For more information about current minimum wage levels across the states, see EPI’s Minimum Wage Tracker (interactive map; last updated July 2018).

17. As an example, a worker earning these poverty-level wages can be classified as a “manager” and be required to work 60 hours per week without receiving any additional pay over the $455 weekly salary.

18. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 2017.

19. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 2017.

20. Center for Popular Democracy, A Fair Workweek: Good for Businesses and Workers (fact sheet), March 2018; Lonnie Golden, Still Falling Short on Hours and Pay: Part-Time Work Becoming New Normal, Economic Policy Institute, December 5, 2016.

21. For examples of “fair workweek” laws passed at the state and local levels, see Julia Wolfe, Janelle Jones, and David Cooper, ‘Fair Workweek’ Laws Help More Than 1.8 Million Workers: Laws Promote Workplace Flexibility and Protect against Unfair Scheduling Practices, Economic Policy Institute, July 19, 2018.

22. Bureau of Labor Statistics, “Table 32. Leave Benefits: Access, Private Industry Workers, March 2017,” National Compensation Survey – Benefits.

23. Elise Gould and Jessica Schieder, Work Sick or Lose Pay? The High Cost of Being Sick When You Don’t Get Paid Sick Days, Economic Policy Institute, June 28, 2017.

24. David Weil, The Fissured Workplace: Why Work Became So Bad and What Can Be Done to Improve It (Cambridge, Mass.: Harvard Univ. Press, 2014).

25. 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.

26. Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration: Access to the Courts Is Now Barred for More Than 60 Million American Workers, Economic Policy Institute, September 27, 2017.

27. Office of Economic Policy, U.S. Department of the Treasury, Non-Compete Contracts: Economic Effects and Policy Implications, March 2016.

28. Evan Starr, J.J. Prescott, and Norman Bishara, “Noncompetes in the U.S. Labor Force,” University of Michigan Law School, Law and Economics Research Paper Series no. 18-013, May 2018. http://dx.doi.org/10.2139/ssrn.2625714.

29. Celine McNicholas, Zane Mokhiber, and Adam Chaikof. 2017. Two Billion Dollars in Stolen Wages Were Recovered for Workers in 2015 and 2016—and That’s Just a Drop in the Bucket. Economic Policy Institute, December 2017.

30. Data are 2016 data from the Bureau of Labor Statistics, Injuries, Illnesses, and Fatalities (IIF) program, public data series accessed August 15, 2018, through the IIF Databases.

31. In 2017, the Wage and Hour Division (WHD) of the U.S. Department of Labor employed 912 investigators around the country to enforce wage and hour laws like the minimum wage, overtime protections, and the job protections of the Family and Medical Leave Act (FMLA) in 9.85 million covered business establishments. That means that even if each WHD investigator went to one establishment every day (taking no days off except for weekends and federal holidays), it would still take well over 40 years for them to visit all covered establishments. (Data on the number of investigators obtained by phone from the U.S. Department of Labor, Wage and Hour Division, July 16, 2018. Data on the number of covered establishments are 2017 data from the Bureau of Labor Statistics, Quarterly Census of Employment and Wages (BLS-QCEW), public data series accessed August 14, 2018, through the QCEW databases and through series reports.)

The forthcoming Supreme Court decision in Janus v. AFSCME Council 31 will likely have profound implications for the 17.3 million workers in state and local government across the country. The case involves a First Amendment challenge to state laws that allow public-sector unions to require state and local government workers who are not union members, but who are represented by a union, to pay “fair share” or “agency” fees for the benefits they receive from union representation. By stripping unions of their ability to collect fair share fees, a decision for the plaintiffs in Janus would hurt all state and local government workers by impeding their ability to organize and bargain collectively.1 This report provides a profile of the 6.8 million of these workers who are covered by union contracts, and it reviews some key long-term trends in unionization in state and local governments.2

As this report shows:

• A majority (58 percent) of union workers (workers covered by a collective bargaining contract) in state and local government are women.
• African Americans, Latinos, and Asian Americans and Pacific Islanders make up one-third of unionized state and local government workers.
• While teachers constitute the single largest subgroup of union workers in state and local government, union workers also include those serving the public as administrators, social workers, police officers, firefighters, and other professionals.
• On average, union workers in state and local government have substantially more formal education than workers in the private sector. Over 60 percent of state and local government union workers have a four-year college degree or more education, compared with one-third in the private sector.

Data on union membership trends shed light on why a Supreme Court decision affecting the unionized state and local government workforce has broad implications. State and local government workers constitute the largest subgroup (42.1 percent) of all union members in the country. Over a third (36.1 percent) of state and local government workers belong to a union, compared with just 6.5 percent of workers in the private sector nationally. This 36.1 percent share is down from the roughly 38- to 40-percent share sustained throughout the 1990s and 2000s. In the 2010s, state and local government worker union membership has been slowly declining as attacks on public-sector unions have ramped up.3

Introduction: Union membership in the public and private sectors, 1949 to today

As of 2017, over one-third (36.1 percent) of state and local government workers are union members, compared with only 6.5 percent of private-sector workers (Figure A).4 We are able to make this comparison because data distinguishing state and local government workers from the entire public-sector workforce became available in 1989. As the figure shows, state and local government union membership rates held steady throughout the 1990s and throughout most of the 2000s, but have since started to decline. By contrast, in the private sector, union membership rates have been falling almost continuously since the mid-1950s.

Historically, the union membership rates in the overall public and private sectors looked very different than they do today. In 1949, just 12.1 percent of all public-sector workers were union members, while over one-third (34.7 percent) of private-sector workers were union members. Union membership in the public sector expanded rapidly from the early 1960s to the mid-1970s, dipped a little by the early 1980s, and remained fairly steady over nearly the next three decades. However, in recent years the public-sector union membership rate has experienced a slow decline.

The state and local government workforce of 17.3 million in 2017 is larger than the federal government workforce (3.7 million) and has a higher union membership rate (36.1 percent) than the federal government (26.6 percent). Thus, state and local government employees account for the vast majority (86.5 percent) of public-sector union members. Figure B tracks the public sector’s increasing share of union membership since 1949.

The number of total public-sector union members (including federal workers) has increased tenfold since 1949 and, as of 2017, stands at 7.2 million workers (Figure C). Most of this growth occurred between the early 1960s and mid-1970s; in recent years the number of public-sector union members has declined slightly. Meanwhile, despite greatly expanded total private-sector employment, there are just over half as many private-sector union members today as there were in 1949. In 2017, there were almost as many union members in the total public (local, state, and federal) sectors (7.2 million) as in the private sector (7.6 million).

Figure A

Figure B

Figure C

Union representation rates

Data that the U.S. Census Bureau’s Current Population Survey began collecting in the 1980s allow us to track “unionization” via the union “representation” rate: the share of workers (members and nonmembers) who are covered by a collective bargaining contract because they are part of a collective bargaining unit.

Union representation by level of government

As Figure D shows, the majority (56.0 percent) of all unionized public-sector workers are employed by local governments, while almost one-third (29.8 percent) work for state governments. Federal employees account for just 14.2 percent of the public-sector union workforce.

About one-third of federal (31.0 percent) and local (33.4 percent) government employees are represented by a union, while a larger share of state government employees (43.6 percent) are represented by a union.

Figure D

Union representation by state

State and local government unionization rates vary substantially by state, from a high of 73.1 percent in New York to a low of 10.1 percent in North Carolina (Figure E and Table 1). Despite the wide range of union representation rates, in 2017 union representation rates were higher in state and local government than in the private sector in every state. While most states have seen a drop in state and local government unionization since 1989, 11 states have experienced an increase. In 2017, the union representation rate in state and local government exceeded 20 percent in the majority of states. By comparison, not a single state had a private-sector unionization rate greater than 20 percent.

Figure E

Table 1

Union representation by occupation

Figure F shows that education workers make up the single largest occupation group in the unionized state and local government workforce, accounting for about four in 10 (42.8 percent of) state and local government workers represented by a union. This occupation group is primarily made up of public school teachers (but also includes a small share of education administrators). Table 2 shows that teachers also have the second-highest union representation rate among the major occupational groups: About half (51.5 percent) of state and local government teachers are covered by a union contract.

Figure F

Table 2

Professionals and office and administrative support workers make up the second largest occupation group in the state and local government union workforce, accounting for 15.9 percent of state and local government workers represented by a union. Almost one-third (29.3 percent) of these workers are covered by a collective bargaining agreement.

Just under one in 10 (9.3 percent) of unionized state and local government workers are in health care and social work occupations; of these workers, more than one-third (37.1 percent) are covered by a collective bargaining agreement.

Together, police and other protective services workers (11.3 percent) and firefighters (3.1 percent) account for 14.4 percent of the state and local government union workforce. These workers have very high unionization rates: Half (49.7 percent) of police and other protective services workers and two-thirds (66.6 percent) of firefighters are represented by a union.

Demographics of state and local government union workers

The state and local government union workforce has substantially more formal education than the workforce as a whole. Three in five (62.4 percent of) state and local government workers covered by a collective bargaining agreement have at least a four-year college degree and a third (33.8 percent) have an advanced degree (Figure G). By comparison, a third (33.6 percent) of all private-sector workers have at least a college degree and about one in 10 (10.7 percent) have an advanced degree. Just 14.0 percent of all state and local government union workers have only a high school diploma and very few (1.5 percent) have not completed their high school education. In the overall private-sector workforce, 27.7 percent of workers have a high school diploma but have completed no further education, and 9.4 percent have less than a high school diploma.

The majority (58.3 percent) of state and local government workers covered by a collective bargaining contract are women (Figure H). This is a substantially higher share of women than in the private sector overall, where women make up just under half (46.7 percent) of the total workforce.

Workers of color account for nearly one in three (30.9 percent) of the state and local government union workforce (Figure I). As Appendix Figure C shows, that share has grown steadily since 1989, when just one in five (22.0 percent of) state and local government workers represented by a union were not white. The change has been driven primarily by the increasing shares of unionized workers who are Hispanic or Asian American/Pacific Islander. The share of black workers in the state and local government union workforce has declined slightly since 1989 (when it was 14.1 percent), but, at 12.1 percent, remains in line with the share of black workers in the overall private-sector workforce, 11.3 percent.5

Just over one in 10 (11.4 percent) state and local government workers represented by a union are immigrants to the United States (Figure J). As Appendix Figure D shows, this share is up from 6.9 percent in 1994 (the earliest year that the Current Population Survey asked respondents where they were born). State and local government union-represented workers are less likely than workers in the private sector to have immigrated to the United States: In 2017, 19.6 percent of private-sector workers said they were foreign-born.

Appendix Figures A–D provide more details on the change over time in shares of the state and local union workforce and private-sector workforce with given demographic characteristics.

Figure G

Figure H

Figure I

Figure J

Endnotes

1. Celine McNicholas, Zane Mokhiber, and Marni von Wilpert, Janus and Fair Share Fees: The Organizations Financing the Attack on Unions’ Ability to Represent Workers, Economic Policy Institute, February 2018.

2. Of the 6.8 million state and local government workers who are covered by a union contract, 6.2 million are union members (see Figure C in this report).

3. See Gordon Lafer, The Legislative Attack on American Wages and Labor Standards, 2011–2012, Economic Policy Institute, October 2013, and Josh Bivens et al., How Today’s Unions Help Working People: Giving Workers the Power to Improve Their Jobs and Unrig the Economy, Economic Policy Institute, August 2017.

4. The data in Figures A, B, and C through 1982 are drawn from Labor Research Association, “U.S. Union Membership: 1948–2004,” LRA Online, 2006. The data in Figures A, B, and C for 1983 to the present are drawn from EPI’s analysis of the U.S. Census Bureau’s Current Population Survey Outgoing Rotation Group (CPS-ORG) microdata.

5. See also Celine McNicholas and Janelle Jones, “Black Women Will Be Most Affected by Janus” (Economic Snapshot), Economic Policy Institute, February 13, 2018.

Appendix figures

Appendix Figure A

Appendix Figure B

Appendix Figure C

Appendix Figure D

Hearing on “Regulatory Reform: Unleashing Economic Opportunity for Workers and Employers,” U.S. House of Representatives Committee on Education and the Workforce, Subcommittee on Workforce Protections, Wednesday, May 23, 2018, 10:00 a.m., Room 2175, Rayburn House Office Building

Thank you Chairman Byrne, Ranking Member Takano, and other distinguished members of the subcommittee. My name is Heidi Shierholz and I am an economist and the Director of Policy at the Economic Policy Institute (EPI), one of the nation’s premier think tanks for analyzing the effects of economic policy on the lives of America’s working families. Prior to joining EPI in early 2017, I was the Chief Economist at the U.S. Department of Labor (DOL).

Thank you for holding this important hearing on regulatory reform. Regulations put laws into action. Congress passes laws, and then federal agencies set the rules for how those laws are followed. For example, if Congress passes a law directing the Occupational Safety and Health Administration (OSHA) to ensure “safe and healthful working conditions” in America’s workplaces, OSHA responds by promulgating specific rules that employers must follow in order to establish safe and healthful workplaces for their employees. Regulations therefore play an essential role in protecting workers—ensuring safe workplaces and fair pay and protecting workers’ rights to organize and join a union so they can bargain collectively with their employers.

But regulations don’t just provide essential protections; research shows that federal regulations also provide a large net benefit to the economy. Rhetoric attacking regulations generally alleges that regulations are overly burdensome for employers and cost jobs, and opponents of regulations routinely emphasize the costs associated with regulations while ignoring their benefits. However, research shows that federal regulations in fact provide an overall net economic benefit and that they have a modestly positive or neutral effect on employment.

To assess whether a regulation should be undertaken, agencies consider a comprehensive set of benefits and costs over a broad time horizon. For example, regulations establishing workplace safety standards save lives, and environmental protection regulations conserve natural resources and improve public health, which may provide benefits for generations. Safety regulations may require substantial upfront investments in safety equipment, but those investments pay off over the long term through a reduction in illnesses like lung cancer and through lives saved over decades. In addition, the need for the safety equipment creates jobs for the people producing the equipment.

Each year the Office of Management and Budget (OMB) reports to Congress on the costs and benefits of federal regulations, with a focus on regulations for which agencies are able to estimate and monetize both costs and benefits. In its most recent report, OMB found that during the last administration, from January 21, 2009, to September 20, 2015, the estimated annual net benefit (benefits minus costs) of major federal regulations was between $103 and $393 billion.1 In other words, federal regulations are providing a net benefit to society of over $100 billion per year. And these numbers are consistent with prior OMB reports. OMB reviewed major regulations from 2000 to 2010 and estimated that the average annual benefit of major regulations is about seven times the cost.2 OMB’s findings are even more significant when you consider studies showing that government regulators generally overestimate costs.3 Further, many benefits are never monetized, but almost all costs are.

Research on the relationship between employment and regulations generally finds that regulations have a modestly positive or neutral effect on the net number of jobs in the economy.4 How might regulations create jobs? When regulations reduce jobs in one area, they create jobs in another. For example, factories making lead paint shut down after regulations banning lead paint were issued in the late 1970s, but enterprises manufacturing lead-free alternatives arose in their place. And some of the older factories hired people to retool machinery to begin manufacturing lead-free paint.

“Mass layoff events” are incidents in which at least 50 unemployment insurance claims are filed against an employer during a five-week period. According to the latest data available (2011 and 2012), employers cited regulations as the reason for mass layoffs in just a tiny share of mass layoff events—one-quarter of one percent.5 The editors of an important collection of essays on the impact of regulations on employment summed up their findings in the following way: “Regulation plays relatively little role in affecting the aggregate number of jobs in the United States… Studies generally find either no strong relationship at all or relatively modest effects of regulation on employment.”6 Even conservative researchers at the Mercatus Center at George Mason University have thrown cold water on the notion that federal regulations are a drag on the economy. In a 2014 report, using a database that attempts to measure the extent to which regulations constrict the freedom of businesses to operate, Nathan Goldschlag and Alexander Tabarrok found that “federal regulation has little to no effect on declining dynamism.”7

On the other hand, the lack of sensible regulations can lead to economic catastrophe and the loss of millions of jobs. The belief that financial markets can “self-regulate” led to a wave of deregulation and lax enforcement beginning in the late 1970s and persisting right up to the financial crisis that precipitated the Great Recession of 2007–2009. Deregulation and lax enforcement played a major role in the housing bubble and the financial and economic crisis that ensued when the bubble burst.8 Nearly nine million jobs were lost in 2008 and 2009. In the wake of this crisis, officials in charge of the nation’s two main financial regulatory agencies stated that self-regulation had failed. As Christopher Cox, then-chairman of the Securities and Exchange Commission, stated, “We have learned that voluntary regulation does not work. . . . The lessons of the credit crisis all point to the need for strong and effective regulation.”9

Despite this evidence, President Trump and congressional Republicans have engaged in an unprecedented attack on regulations over the last 19 months, rolling back rules that were intended to protect workers, consumers, and public health. The Trump administration and congressional Republicans have been successful in repealing many existing regulations and making it more difficult for government agencies to effectively regulate industries. One of President Trump’s first actions after taking office was to issue an executive order requiring federal agencies to identify at least two existing regulations to “repeal” when proposing a new regulation.10 The Trump administration’s Office of Information and Regulatory Affairs reported that federal agencies issued 67 deregulatory actions and three regulatory actions during fiscal year 2017.11

Congressional Republicans have been instrumental in supporting this deregulatory effort. In the first 90 days of the congressional session, the House and Senate used Congressional Review Act (CRA) resolutions—which provide for a quick process to overrule recent regulations—to overturn 14 Obama-era rules.12 Prior to the 115th Congress, the CRA had only been successfully used to repeal a rule once, in 1996.13

An examination of the regulations repealed or rescinded reveals that many of the rules that were eliminated provided important protections to our nation’s workers. President Trump and congressional Republicans have blocked regulations that protect workers’ pay, safety, and rights to organize and join a union. By blocking these rules, the president and Congress are raising the risks for workers while rewarding companies that put their employees’ health, safety, and paychecks at risk. Below are some key examples.14

Rolling back a rule that required employers to keep accurate records of workplace injuries and illnesses

Congressional Republicans approved and President Trump signed a Congressional Review Act resolution blocking the Workplace Injury and Illness recordkeeping rule, which clarifies an employer’s obligation under the Occupational Safety and Health Act to maintain accurate records of workplace injuries and illnesses.15

Recordkeeping is about more than paperwork. If an employee is injured on the job (for example, is cut or burned, or suffers an amputation), contracts a job-related illness, or is killed in an accident on the job, then it is the employer’s duty to record the incident and work with the Occupational Safety and Health Administration to investigate what happened. Failure to keep injury/illness records means that employers, OSHA, and workers cannot learn from past mistakes and makes it harder to prevent the same tragedies from happening to others. By signing the resolution to block this rule, President Trump gave employers a get-out-of-jail-free card when they fail to maintain—or when they falsify—their injury/illness logs. Workers who could have been saved from preventable accidents on the job will have to pay the price with their health or even their lives.

Delaying a rule requiring employers to submit injury and illness records electronically to OSHA

OSHA’s electronic recordkeeping rule is an important supplement to the recordkeeping rule described above. The Obama-era rule does not create any new reporting requirements for employers—it simply requires employers who are currently required to keep OSHA injury and illness records to submit their records to OSHA electronically, making them publicly available. Improving data collection and dissemination of injury and illness incidents in America’s workplaces will allow OSHA, employers, employees, employee representatives, other government agencies, and researchers to identify patterns so that workplace hazards can be addressed and worker injuries and illnesses prevented. And because this information will be easily accessible to a broad audience on OSHA’s website, employers are more likely to comply with workplace safety rules to protect their workers—knowing that they’ll have to answer to the public if they don’t.16

According to the final rule, employers covered by the rule were required to submit their 2016 records electronically by July 1, 2017. But delays by OSHA pushed back the compliance date to December 2017, nearly six months after the original date.17 Most troubling, though, was OSHA’s November 2017 announcement that it intends to “reconsider, revise, or remove portions of that rule in 2018.”18

In 2016 alone, well over 5,000 workers died on the job.19 If OSHA rescinds or weakens this rule in 2018, it will mean that patterns of unsafe working conditions may be harder to detect, making workplaces even more dangerous for workers.

Rolling back protections for workers exposed to beryllium

On January 9, 2017, the Occupational Safety and Health Administration published its final rule on occupational exposure to beryllium and beryllium compounds, which was promulgated to protect employees exposed to beryllium from significant risks of chronic beryllium disease and lung cancer.20 Under the Trump administration, OSHA proposed to rescind some provisions of the rule intended to protect workers in the construction and shipyards sectors.21 DOL announced that OSHA will not enforce the shipyard and construction standards until further notice while this new rulemaking is underway.22

About 62,000 workers are exposed to beryllium in their workplaces, including approximately 11,500 construction and shipyard workers.23 The Trump administration’s proposal would rescind important ancillary protections in the new rule, which was issued after decades of effort and study that uncovered overwhelming evidence that OSHA’s 35-year-old beryllium standard did not protect workers from severe lung disease and lung cancer.24 Under President Trump’s proposal, employers in construction and maritime would, for example, no longer have to measure beryllium levels or provide medical testing to workers at risk of fatal lung disease.

Proposing to increase hog line speeds, endangering workers

The Trump Department of Agriculture proposed regulations to create the New Swine Inspection System, which would allow for an unlimited increase in hog slaughter line speeds—putting worker safety at risk. Meat slaughter and processing is a high-hazard industry. Even at current line speeds, pork slaughter and processing workers face many job risks that can lead to severe injury, illness, and death.25 The pork industry is already one of the most dangerous for workers, who work in cold, wet, noisy, and slippery conditions making tens of thousands of forceful repetitive motions using knives, hooks, and saws. Meatpacking workers are injured or made ill at work at 2.4 times the rate of workers in other private-sector industries, and they face work-related injuries or illnesses that result in lost time or restrictions at nearly three times the rate of workers in other private-sector industries. Further, meatpacking workers experience hearing loss at nearly 17 times the rate of workers in other private-sector industries.26 Increasing line speeds will almost surely lead to an even greater rate of injuries and illnesses among meatpacking workers, and the medical and indirect costs to workers and employers of these additional occupational injuries and illnesses will be sizable. Even a 1 percent increase in nonfatal injuries and illnesses as a result of the rule would increase the cost of the rule by well over $2 million annually.27

Proposing to weaken protections for farmworkers

The President Trump Environmental Protection Agency proposed weakening regulations protecting farmworkers from harmful effects of pesticide exposure.28 The regulations prohibit workers younger than 18 from handling pesticides, require that other workers receive annual safety training on handling pesticides, and require employers to post warning signs around pesticide-treated areas.29 The EPA proposed these standards in 2014, and many of the protections have already gone into effect.30 The EPA itself has estimated that roughly 2,000–3,000 cases of acute pesticide exposure occur among farmworkers every year,31 with health effects ranging from rashes, nausea, blisters, and respiratory issues to Parkinson’s disease.32 Rolling back these standards exposes farmworkers to additional risks of illness and death.

Proposing to make it legal for employers to take workers’ hard-earned tips

On December 5, 2017, the Trump administration Department of Labor issued a proposal to allow employers to collect their workers’ tips, ostensibly to distribute them more evenly through tip pools. However, the rule was written in such a way that it would have made it legal for employers to simply pocket tips. This would have been a major windfall to restaurant owners and other employers of tipped workers, out of the pockets of people who work for tips. EPI estimated that if that rule were finalized, workers would lose $5.8 billion a year in tips, with $4.6 billion of that coming from the pockets of women working in tipped jobs.33

In a highly unusual move, DOL did not provide an estimate of the dollar amount of tips that would be shifted from workers to employers as a result of the rule—even though the department was required, as a part of the rulemaking process, to assess all quantifiable costs and benefits to the fullest extent possible. DOL initially claimed it could not do an analysis, when in actuality it did produce an estimate—and then buried it because it showed the rule would be terrible for workers.34 Thanks to investigative reporting, it is now known that Secretary of Labor Alexander Acosta went to the highest level within the White House Office of Management and Budget to get the green light he needed to bury the required analysis.35 Likely in large part due to these revelations, DOL came to the table to hammer out a compromise. The omnibus spending bill that President Trump signed on March 23 included a provision that makes it clear that employers may not keep any tips received by their employees.

Taking money out of workers’ pockets by weakening the overtime rule

In 2016, after years of work, the Department of Labor updated the “overtime pay” rule, raising the salary threshold below which workers are automatically eligible for overtime pay to $47,476 36 and giving 12.5 million people new or strengthened overtime protections.37 Because the threshold had not been adequately updated over the last few decades, it had eroded dramatically with inflation. The percentage of full-time salaried workers automatically eligible for overtime based on their pay dropped from more than 60 percent in 1975 to less than 7 percent in 2016.38 Prior to the 2016 rule, low-level managers who made only $23,660 a year—lower than the poverty rate for a family of four—could be required to work long hours without any extra pay for the extra hours worked.39

The 2016 updated overtime pay rule would have helped ensure that middle-class Americans who work hard get a fair return on that work—putting money in people’s pockets and giving them the chance to spend more time with their families. However, the Obama administration DOL’s overdue attempt to restore lost pay to America’s workers was blocked in the courts by corporate interests, and, on October 30, 2017, the Trump administration made clear that it would not defend the rule. The Trump administration has signaled that it is going to undermine the rule with new rulemaking, once again siding with corporate interests over workers.40

Rolling back rules that made it easier for workers to save for retirement

On April 13, 2017, President Trump signed two resolutions blocking DOL rules that assisted local governments that create Individual Retirement Account (IRA) programs for private-sector workers. Many municipalities have sought to establish initiatives requiring employers that do not offer a workplace retirement plan to automatically enroll workers in payroll-deduction IRAs administered by the local government. The DOL rule paved the way for these initiatives by simply clarifying that these plans are not covered by the Employee Retirement Income Security Act (ERISA), the federal law governing private-sector employer-sponsored plans, addressing localities’ concerns that they may be subject to certain liabilities under ERISA.41 The Government Accountability Office warned that such legal uncertainties could delay or deter states’ efforts to expand coverage.42

By blocking this rule, President Trump blocks a path for retirement savings for the roughly 55 million private-sector wage and salary workers ages 18–64 who do not have access to retirement savings plans through their employers. Local payroll-deduction savings initiatives encourage workers to contribute to tax-favored IRAs through automatic deduction. These savings initiatives provide important assistance to workers in saving for retirement, as few workers contribute to a retirement plan outside of work. Without innovations like these, fewer workers will be able to afford retirement.43

Delaying a rule providing crucial protections for retirement savers

On February 3, 2017, President Trump issued a Presidential Memorandum to review the “fiduciary” rule.44 This was just two weeks into his administration, a clear signal that undermining this common sense rule is a top priority for the administration. The fiduciary rule required that financial professionals presenting themselves as investment advisers act in their clients’ best interests. The rule is needed because “conflicted” advice leads to lower investment returns, causing real losses—an estimated $17 billion a year—for the clients who are victimized.45 The rule would prohibit common practices such as steering clients toward investments that pay the adviser a commission but provide the client a lower rate of return. It was exhaustively researched by the Department of Labor and debated over several years, survived several court challenges, and was completed in 2016. It was supposed to be implemented on April 10, 2017.

However, unscrupulous players in the financial industry are working to kill the rule so they can continue fleecing retirement savers. The Trump administration is doing everything it can to help them, for example instituting various delays of the rule. I estimate that these delays alone will cost retirement savers $18.5 billion over 30 years.46

Though the rule withstood numerous legal challenges, the 5th Circuit Court of Appeals vacated the rule in March. Subsequently, the Department of Labor announced that “pending further review” it would not be enforcing the rule.47 The administration did not appeal the 5th Circuit decision, which came two days after a 10th Circuit decision upholding the rule, leaving the rule in legal limbo.

Rolling back a rule ensuring that unemployed workers can access earned benefits

Congressional Republicans approved and President Trump signed a resolution that blocked a regulation establishing rules for drug testing applicants for unemployment insurance (UI) benefits.48 As part of the deal, states were permitted to drug test only those UI applicants who had been discharged from their last job for drug use or whose only suitable work opportunity is in a field that regularly drug tests workers. The rule directed the secretary of labor to determine which occupations regularly drug test workers. The Department of Labor issued a rule defining such “occupations” as those that are required, or may be required in the future, by state or federal law, to be drug tested.49

This rule would have clarified circumstances under which individuals filing for unemployment benefits may be subjected to drug testing. Mandatory drug testing for UI applicants is arguably unconstitutional and unnecessarily stigmatizes jobless workers. Conditioning receipt of UI benefits on this type of requirement fundamentally changes our nation’s UI system, creating the perception that workers do not earn unemployment insurance. But workers do earn the right to unemployment insurance benefits through their prior participation in the workforce. Workers only access their earned benefits when they lose their jobs through no fault of their own and are actively working to find new ones; this insurance is intended to help cover workers’ basic needs during this gap period between jobs. The repeal of this rule will hurt workers when they are at their most vulnerable, while benefiting companies seeking to reduce their tax obligations.

Putting the EEO-1 pay data collection requirements on hold

The EEO-1 pay data collection requirements were intended to identify and fix pay disparities in America’s workplaces. They would have required large companies (with 100 or more employees) to confidentially report to the Equal Employment Opportunity Commission (EEOC) information about what they pay their employees by job category, sex, race, and ethnicity.50 The goal of these requirements was to help employers, the public, and the government identify and remedy gender and racial/ethnic pay inequities. But the Trump administration has put them on hold.51

By putting the equal pay data collection requirements on hold, the Trump administration is making it harder for employers and federal agencies to identify pay disparities and root out employment discrimination. Further, this decision ignores what the research shows—inequities have gotten worse, not better. Even among workers with the same level of education and work experience, black–white wage gaps are larger today than nearly 40 years ago52 and gender pay disparities have remained essentially unchanged for at least 15 years.53 In both cases, discrimination has been shown to be a major factor in the persistence of those gaps.

When these requirements were first announced, former EEOC Chair Jenny R. Yang stated, “Collecting pay data is a significant step forward in addressing discriminatory pay practices. This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.”54 By staying these requirements, the Trump administration has shown that it does not value equal pay for equal work.

Rolling back a transparency rule that would allow workers to know when their employer has hired outside anti-union consultants during a union election

The rights of most workers to organize and bargain collectively with their employers are protected under the National Labor Relations Act (NLRA) of 1935. But when workers seek to exercise these rights, employers often hire union avoidance consultants—also known as “persuaders”—to orchestrate and roll out anti-union campaigns. Union avoidance consultants may engage with workers directly, for example, delivering their anti-union presentations in face-to-face meetings. Or they may influence workers indirectly by providing management with ammunition for campaigns, including anti-union flyers, speeches, videos, and other materials.55 The President Trump DOL has proposed rolling back an important rule (the “persuader rule”) that ensured workers would have accurate information about their employer’s use of anti-union consultants surrounding union election campaigns.56

The rule Republicans are rolling back closed a massive reporting loophole that has allowed employers to keep indirect persuader activity secret. Disclosure of the large amounts of money employers pay to anti-union consultants—sometimes hundreds of thousands of dollars—would allow workers to know whether the messages they hear are coming directly from their employer or from a paid, third-party consultant.57 Seeing how much money employers are paying out to these consultants would provide an important perspective on employers’ frequent arguments that they cannot afford to pay union wages, and it would give workers the information they need to make informed choices as they pursue their right to organize. This disclosure rule would have helped level the playing field for workers who want to join together to negotiate with their employers for better pay and working conditions.

Almost half (48 percent) of workers polled said they’d vote to create a union in their workplace tomorrow if they got the chance.58 However, the intensity with which employers have opposed organizing efforts,59 and the continuing tilt of the legal and policy playing field against workers seeking to bargain collectively, have led to a decline in union membership. DOL’s rescission of the persuader rule is just one more indicator that the Trump administration is working on behalf of corporate interests to further rig the system against working people.

Rolling back rules to modify and streamline union elections

On December 12, 2017, the National Labor Relations Board (NLRB) took the first step toward rolling back a 2014 rule that simplified the union election process by which working people can join together to bargain for better wages and working conditions. The NLRB announced the issuance of a Request for Information (RFI) asking for public input on the 2014 election rule—indicating that President Trump’s appointees to the NLRB plan to alter the rule.60 The election rule, which has been upheld by a federal court of appeals, includes a series of reforms that eliminate unnecessary delay in the election process and modernize agency procedures.

The NLRB protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions. Employees covered by the National Labor Relations Act are guaranteed the right to form, join, decertify, or assist a labor organization; to bargain collectively through representatives of their own choosing; or to refrain from such activities. The NLRB’s decision to reexamine the rule demonstrates that the Republican board majority has little interest in maintaining an efficient election process for this nation’s workers.

Rolling back the Fair Pay and Safe Workplaces rule

Senate Republicans approved, and President Trump signed, a resolution that rolled back a rule requiring federal contractors to disclose workplace violations—specifically violations of federal labor laws and executive orders that address wage and hour, safety and health, collective bargaining, family medical leave, and civil rights protections.61 The rule had directed that such violations be considered when awarding federal contracts. In addition, the rule had also mandated that contractors provide each worker with written notice of basic information including wages, hours worked, overtime hours, and whether the worker is an independent contractor. Finally, the rule had prohibited contractors from requiring workers to sign predispute arbitration agreements for discrimination, harassment, or sexual assault claims.

Currently, there is no effective system to ensure that taxpayer dollars are not awarded to contractors who violate basic labor and employment laws. As a result, the federal government awards billions of dollars in contracts to companies that break the law.62 This rule would have helped ensure that federal contracts (and taxpayer dollars) are not awarded to companies with track records of labor and employment law violations. Workers, taxpayers, and law-abiding contractors would have benefited from this rule. Contractors with records of cutting corners by violating labor and employment laws will benefit from the congressional resolution blocking this rule. What’s more, by repealing this rule, the federal government will be rewarding companies that force workers to waive their rights to go to court and instead sign agreements requiring them to resolve claims of sexual harassment or discrimination in private arbitration.

Gearing up to do more damage

On May 9, the Department of Labor released its Spring Regulatory Agenda. It includes plans for repealing, weakening, or delaying a number of important protections that safeguard workers’ health and lives on the job. One in particular is a Wage and Hour Division proposal that would update the rules that limit workers under age 18 from working in occupations that are particularly hazardous or detrimental to the health or well-being of children. These rules are known as Hazardous Occupations Orders (HOs). A summary of a draft regulation obtained by Bloomberg Law showed that DOL will propose relaxing the current rules that prohibit apprentices and student learners who are under the age of 18 from receiving extended, supervised training in certain dangerous jobs.63 In other words, instead of working to safeguard the health and well-being of all workers—especially children—DOL is instead planning to propose to make it easier for 16- and 17-year-olds to work in hazardous occupations.

Conclusion

Job growth has been strong for an extended period. The labor market has added more than 2 million jobs per year in each of the last seven years—including, notably, during the period of implementation of many of the regulations that the Trump administration and congressional Republicans have abandoned or rolled back. Wage growth, on the other hand, is weak for most workers. This weak wage growth cannot, however, be pinned on regulation. Weak wage growth for most workers and rising inequality is a trend that began late in the Carter administration and worsened substantially in the Reagan-Bush years. In fact, since 1979, inflation-adjusted wages grew across the board only during a brief period late in the Clinton administration when the economy attained something close to full employment (4.1 percent unemployment on average for two full years in 1999 and 2000).64 Weak wage growth over most of the last four decades was the result of a policy onslaught to shift economic leverage away from low- and middle-wage workers. If the Trump administration and congressional Republicans were truly looking for policies to ensure that the economy delivers for all workers—and not just the already-affluent—they would not spend their time painting regulations as the problem while dismantling key worker protections. They would instead tackle policies that would actually lead to a fair economy. A document that provides a robust agenda for creating jobs, raising wages, and fixing our rigged economy is attached. It includes policies to strengthen—not gut—rules that support good jobs, restore full employment as a primary policy target, protect the basic human right of worker organization, level the playing field that trade laws and exchange rate misalignments have tilted against workers, and raise top tax rates to invest in America and restore power to the bottom 90 percent.

Attachment: “A Real Agenda for Working People: What Trump Would Do If He Were Serious about Creating Jobs, Raising Wages, and Fixing Our Rigged Economy,” Economic Policy Institute, December 2016.

Endnotes

1. Office of Management and Budget, 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act, 2016; see also Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017.

2. John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss are Overblown, Economic Policy Institute, April 12, 2011.

3. John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss are Overblown, Economic Policy Institute, April 12, 2011.

4. Josh Bivens, “Testimony before the Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law,” February 24, 2016; John Irons and Isaac Shapiro, Regulation, Employment, and the Economy: Fears of Job Loss Are Overblown, Economic Policy Institute, April 12, 2011.

5. U.S. Bureau of Labor Statistics, “Extended Mass Layoffs in 2012,” BLS Reports, September 2013.

6. Cary Coglianese, Adam M. Finkel, and Christopher Carrigan, eds., Does Regulation Kill Jobs? (Philadelphia: University of Pennsylvania Press, 2014).

7. Nathan Goldschlag and Alexander T. Tabarrok, “Is Regulation to Blame for the Decline in American Entrepreneurship?” George Mason University Working Paper in Economics No. 15-11, December 2014.

8. Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017.

9. Heidi Shierholz and Celine McNicholas, Understanding the Anti-Regulation Agenda: The Basics, Economic Policy Institute, April 11, 2017, citing Christopher Cox, testimony before the House Committee on Oversight and Government Reform, October 23, 2008.

10. White House Office of the Press Secretary, “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017; Economic Policy Institute, “Executive Order on Reducing Regulation and Controlling Regulatory Costs: EO 13771,” Policy Watch (Perkins Project on Worker Rights and Wages), January 30, 2017.

11. Office of Information and Regulatory Affairs, Office of Management and Budget, Executive Office of the President, “Regulatory Reform: Two-for-One and Regulatory Cost Caps,” accessed January 25, 2018, at www.reginfo.gov/public/do/eAgendaEO13771.

12. Eric Lipton and Jasmine C. Lee, “Which Obama-Era Rules Are Being Reversed in the President Trump Era,” New York Times, May 18, 2017. A CRA resolution either blocks a rule from taking effect or, if the rule has already taken effect, it prohibits the rule from continuing to be in effect. It also blocks any agency from issuing a new rule in “substantially the same form” as the disapproved rule—thus limiting options for restoring lost protections. (Technically, a disapproved rule could be reissued if Congress passed a bill specifically authorizing an agency to reissue the rule, but this is unlikely.)

13. Stuart Shapiro, “The Congressional Review Act, Rarely Used and (Almost Always) Unsuccessful,” The Hill, April 17, 2015; Eric Lipton and Jasmine C. Lee, “Which Obama-Era Rules Are Being Reversed in the President Trump Era,” New York Times, May 18, 2017.

14. Many of the examples and descriptions provided here come from Celine McNicholas, Heidi Shierholz, and Marni von Wilpert, Workers’ Health, Safety, and Pay are among the Casualties of Trump’s War on Regulations: A Deregulation Year in Review, Economic Policy institute, January 29, 2018.

15. H.J. Res. 83, 115th Congress (2017); PL 115-21.

16. As noted on the informational page about the May 2016 final rule on OSHA’s website, “Behavioral economics tells us that making injury information publicly available will ‘nudge’ employers to focus on safety” (U.S. Department of Labor, Occupational Safety and Health Administration, “Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses” [web page], accessed January 25, 2018, at www.osha.gov/recordkeeping/finalrule). For the full text of the May 2016 rule, see Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016).

17. On June 27, 2017, OSHA proposed to push back the compliance date to December 1, 2017. On November 22, 2017, OSHA announced a further delay, to December 15, 2017. Finally, on December 18, 2017, OSHA announced that it would “not take enforcement action against those employers who submit their reports after the December 15, 2017, deadline but before December 31, 2017, final entry date.” See U.S. Department of Labor, Occupational Safety and Health Administration, “US Labor Department’s OSHA Proposes to Delay Compliance Date for Electronically Submitting Injury, Illness Reports” [news release], June 27, 2017; U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017” [news release], November 22, 2017; U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Labor Department’s OSHA Accepting Electronically Submitted Injury, Illness Reports through December 31” [trade release], December 18, 2017.

18. U.S. Department of Labor, Occupational Safety and Health Administration, “U.S. Department of Labor’s OSHA Extends Compliance Date for Electronically Submitting Injury, Illness Reports to December 15, 2017” [news release], November 22, 2017; Improve Tracking of Workplace Injuries and Illnesses: Delay of Compliance Date, 82 Fed. Reg. 55761 (November 24, 2017).

19. U.S. Department of Labor, Bureau of Labor Statistics, “National Census of Fatal Occupational Injuries in 2016” [news release], December 19, 2017.

20. Occupational Exposure to Beryllium, 82 Fed. Reg. 2470 (January 9, 2017).

21. Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, 82 Fed. Reg. 29182 (June 27, 2017).

22. U.S. Department of Labor, Occupational Safety and Health Administration, “US Labor Department’s OSHA Publishes Proposed Rule on Beryllium Exposure” [news release], June 23, 2017.

23. U.S. Department of Labor, Occupational Safety and Health Administration, “Final Rule to Protect Workers from Beryllium Exposure” [web page], accessed January 25, 2018, at www.osha.gov/berylliumrule/index.html.

24. Jordan Barab, “OSHA Launches Rollback of Beryllium Worker Protections,” Confined Space Blog, June 23, 2017.

25. Deborah Berkowitz and Hooman Hedayati, OSHA Severe Injury Data from 29 States: 27 Workers a Day Suffer Amputation or Hospitalization; Poultry Processing Among Most Dangerous Industries, National Employment Law Project, April 2017

26. U.S. Bureau of Labor Statistics, “Table 1. Incidence Rates of Nonfatal Occupational Injuries and Illnesses by Industry and Case Types, 2016” and “Table SNR08. Incidence Rates of Nonfatal Occupational Illness, by Industry and Category of Illness, 2016,” Employer-Reported Workplace Injuries and Illnesses (Annual), last modified November 9, 2017.

27. Heidi Shierholz and Marni von Wilpert. “EPI Comment on the Modernization of Swine Slaughter Inspection Rule.” Economic Policy Institute. May 2, 2018.

28. Pesticides; Agricultural Worker Protection Standard; Reconsideration of Several Requirements and Notice About Compliance Dates, 82 Fed. Reg. 60576 (December 21, 2017).

29. National Safety Council, “EPA Proposes ‘Commonsense’ Changes to Protect Farmworkers from Pesticides,” Safety+Health, February 21, 2014; 40 CFR 170.

30. United States Environmental Protection Agency, “Agricultural Worker Protection Standard” [web page], accessed January 25, 2018, at www.epa.gov/pesticide-worker-safety/agricultural-worker-protection-standard-wps.

31. According to Pesticides; Agricultural Worker Protection Standard Revisions, 80 Fed. Reg. 67495 (November 2, 2015), “EPA estimates that about 1,810 to 2,950 acute pesticide exposure incidents occur annually on agricultural establishments.”

32. Penn State College of Agricultural Sciences, Potential Health Effects of Pesticides, November 6, 2017; National Institutes of Health, “NIH Study Finds Two Pesticides Associated with Parkinson’s Disease” [news release], February 11, 2011.

33. Heidi Shierholz, David Cooper, Julia Wolfe, and Ben Zipperer. Women Would Lose $4.6 Billion in Earned Tips if the Administration’s ‘Tip Stealing’ Rule is Finalized: Overall, Workers Would Lose $5.8 billion. Economic Policy Institute, January 17, 2018.

34. Ben Penn, “Labor Dept. Ditches Data Showing Bosses Could Skim Waiters’ Tips,” Bloomberg Law, Daily Labor Reports, February 1, 2018.

35. Ben Penn, “Mulvaney, Acosta Override Regulatory Office to Hide Tips Rule Data,” Bloomberg Law, Daily Labor Reports, March 21, 2018.

36. U.S. Department of Labor Wage and Hour Division, “Final Rule: Overtime. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the Fair Labor Standards Act” [informational web page], accessed January 26, 2018, at www.dol.gov/whd/overtime/final2016.

37. Ross Eisenbrey and Will Kimball, The New Overtime Rule Will Directly Benefit 12.5 Million Working People: Who They Are and Where They Live, Economic Policy Institute, May 17, 2016.

38. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 15, 2017.

39. Celine McNicholas, Samantha Sanders, and Heidi Shierholz, What’s at Stake in the States if the 2016 Federal Raise to the Overtime Pay Threshold Is Not Preserved—and What States Can Do about It, Economic Policy Institute, November 15, 2017.

40. In November 2016, the United States District Court for the Eastern District of Texas, Sherman Division, issued a preliminary nationwide injunction blocking the rule from taking effect. In December 2016 the Department of Justice, on behalf of the Department of Labor, filed a notice with the U.S. Circuit Court of Appeals for the Fifth Circuit to appeal the preliminary injunction. In August 2017, the United States District Court for the Eastern District of Texas issued a final ruling concluding that the overtime rule was invalid, rendering Justice’s 2016 appeal moot. On October 30, 2017, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal the judge’s decision as part of a process under which the Trump administration DOL will undertake its own rulemaking to determine a new salary threshold (see U.S. Department of Labor, “Department of Labor Provides Update on Overtime” [news release], October 30, 2017).

41. Savings Arrangements Established by Qualified State Political Subdivisions for Non-Governmental Employees, 81 Fed. Reg. 92639 (December 20, 2016).

42. United States Government Accountability Office, Retirement Security: Federal Action Could Help State Efforts to Expand Private Sector Coverage, September 2015.

43. David John and Gary Koenig, Fact Sheet: Workplace Retirement Plans Will Help Workers Build Economic Security, AARP Public Policy Institute, October 2014; Anqi Chen and Alicia H. Munnell, Who Contributes to Individual Retirement Accounts? Center for Retirement Research at Boston College, Issue in Brief no. 17-8, April 2017.

44. White House Office of the Press Secretary, “Presidential Memorandum on Fiduciary Duty Rule,” February 3, 2017.

45. Heidi Shierholz and Ben Zipperer, “Here Is What’s At Stake with the Conflict of Interest (‘Fiduciary’) Rule,” Economic Policy Institute, May 30, 2017.

46. Heidi Shierholz. “The Trump Administration’s Attempt to Dismantle the Fiduciary Rule: A Year in Review,” Working Economics (Economic Policy Institute blog), February 2, 2018.

47. Robert Steyer, “DOL Says It Won’t Enforce Fiduciary Rule Pending Review After Appeals Court Strikes It Down,” Pensions & Investments, March 16, 2018.

48. H.J. Res. 42, 115th Congress (2017); PL 115-17.

49. Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants, 81 Fed. Reg. 50298 (August 1, 2016).

50. U.S. Equal Employment Opportunity Commission, “EEOC to Collect Summary Pay Data” [press release], September 29, 2016.

51. U.S. Equal Employment Opportunity Commission, “What You Should Know: Statement of Acting Chair Victoria A. Lipnic about OMB Decision on EEO-1 Pay Data Collection” [web page], accessed January 25, 2018, at www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm.

52. Valerie Wilson and William M. Rodgers III, Black–White Wage Gaps Expand with Rising Wage Inequality, Economic Policy Institute, September 20, 2016.

53. Elise Gould, Jessica Schieder, and Kathleen Geier, What Is the Gender Pay Gap and Is It Real?: The Complete Guide to How Women Are Paid Less Than Men and Why It Can’t Be Explained Away, Economic Policy Institute, October 20, 2016.

54. U.S. Equal Employment Opportunity Commission, “EEOC to Collect Summary Pay Data” [press release], September 29, 2016.

55. U.S. House of Representatives, Education and Workforce Committee, Minority Views: H.J. Res. 87, Providing for Congressional Disapproval under Chapter 8 of Title 5, United States Code, of the Final Rule of the Department of Labor relating to “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act.” 114th Congress, Second Session, September 9, 2016.

56. Rescission of Rule Interpreting “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act, 82 Fed. Reg. 26877 (June 12, 2017).

57. Marni von Wilpert, “Union Busters Are More Prevalent Than They Seem, and May Soon Even Be at the NLRB,” Working Economics (Economic Policy Institute blog), May 1, 2017.

58. Josh Bivens et al., How Today’s Unions Help Working People, Economic Policy Institute, August 24, 2017.

59. Kate Bronfenbrenner, No Holds Barred—The Intensification of Employer Opposition to Organizing, Economic Policy Institute Briefing Paper no. 235, May 20, 2009.

60. National Labor Relations Board, Office of Public Affairs, “Request for Information Regarding Representation Election Regulations” [announcement], December 12, 2017; Representation-Case Procedures, 82 Fed. Reg. 58783 (December 14, 2017).

61. H.J. Res. 37, 115th Congress (2017); PL 115-11.

62. Office of Senator Elizabeth Warren, Breach of Contract: How Federal Contractors Fail American Workers on the Taxpayer’s Dime, 2017.

63. Ben Penn, “Trump Administration Wants to Train Teens in ‘Hazardous’ Jobs.” Bloomgberg Law, Daily Labor Reports, May 8, 2018.

64. Lawrence Mishel, Josh Bivens, Elise Gould, and Heidi Shierholz, The State of Working America, 12th Edition, Economic Policy Institute and Cornell University Press, 2012.

Workers depend on class and collective actions to enforce many workplace rights. Employment class action cases have helped to combat race and sex discrimination and are fundamental to the enforcement of wage and hour standards. Without the ability to aggregate claims, it would be very difficult, if not impossible, for workers to find legal representation in these matters. This is particularly true for low-wage workers, whose cases are unlikely to involve large enough awards to attract attorneys to invest time in the case. That is the power of class and collective action suits: they let workers pool their claims, making it possible for an attorney to earn enough to make the case worth pursuing.

Banning mandatory arbitration in sexual harassment and sexual assault claims but continuing to restrict class and collective action will do little to help women in low-and middle-wage jobs access justice when they face sexual harassment or assault. These women will still face challenges finding legal representation and find the cost of litigation prohibitive. And it will do nothing to help women facing other kinds of workplace violations. This is especially concerning considering the majority of low-wage workers in the United States are women.  And research shows that low-wage workers in the United States lose more than $50 billion annually as a result of wage theft by their employers. Workers have the right to a workplace free of sexual harassment as well as their right to be paid fairly, and creating a hierarchy of worker protection laws by privileging certain types of claims over others is fundamentally unjust—particularly for low-wage workers. Companies should not be applauded for such a minimal response to workplace misconduct and advocates should not be fooled into seeing this as a solution.

Our nation’s labor and employment laws need reform. A key element of reform must be to end employers’ ability to require workers to sign away their rights as a condition of employment. The Supreme Court will soon decide National Labor Relations Board v. Murphy Oil USA, which will determine whether employers can lawfully require workers to sign arbitration agreements that include class and collective action waivers. If the Court denies workers this fundamental right, Congress must act to protect it. If policymakers leave the solution to corporations, we will end up with a system that privileges some claims and fails most workers.

Currently, 28 states, predominantly in the Midwest, South, and Southwest, have right-to-work laws in place.1 Later this year, voters in Missouri will decide whether to adopt a new RTW law approved by the state’s general assembly last year.

This fact sheet illustrates the disproportionate impact that a Missouri RTW law could have on African American workers, by highlighting the group’s strong representation among unionized workers in Missouri. This analysis is based on union membership data available from the Current Population Survey (conducted by the U.S. Census Bureau for the U.S. Bureau of Labor Statistics) for 2010–2017, the period since the end of the Great Recession.2

In national studies that control for other factors than can influence wages statewide, including the cost of living, wages are still at least 3 percent lower in RTW states than in non-RTW states.3 While Missouri workers of every race will likely see the negative impacts of an RTW law, black Missourians would be disproportionately harmed by this right-to-work law. That is because black workers are more likely to be covered by a union contract (“unionized”) than other workers. As shown in Figure A, in Missouri, 13.9 percent of all black workers are unionized, compared with 10.3 percent of all white workers, and 9.3 percent of all Hispanic workers. Within the private sector alone, 10.5 percent of black workers, 8.0 percent of white workers, and 9.0 percent of Hispanic workers are covered by a union contract. Black Missourians’ participation in private-sector unions is slightly higher than participation by black workers in the private sector nationwide (9.4 percent).4 (For union representation by gender and race/ethnicity, see Appendix Table 1.)

Figure A

Due to this greater likelihood of being in a union, black workers have greater representation among the unionized workforce in Missouri than among the overall Missouri workforce. As shown in Figure B, black workers make up 13.3 percent of private-sector workers represented by a union, but just 9.9 percent of the total workforce. (For union shares by gender, see Appendix Table 2. For union shares by gender and race/ethnicity, see Appendix Table 3.)

Figure B

The negative effects of RTW laws extend beyond union members. As national evidence has shown, when RTW laws weaken the ability of workers to come together and bargain for higher wages, better benefits, and improved working conditions, this depleted worker power effectively lowers the bar for nonunion employers that once had to compete with the higher standards in unionized workplaces in order to attract and retain workers, and ultimately hurts the broad middle class—both union and nonunion workers.5

Updated June 19, 2018, to include appendix tables.

Endnotes

1. The National Conference of State Legislatures maintains a “Right-to-Work Resources” web page that lists states with RTW laws.

2. Data from the years 2010–2017 are combined in order to get a larger sample size and more reliable estimates. Source: U.S. Census Bureau, Current Population Survey Outgoing Rotation Group microdata (U.S. Census Bureau CPS ORG), survey conducted by the Bureau of the Census for the Bureau of Labor Statistics [machine-readable microdata file]. Accessed at https://thedataweb.rm.census.gov/ftp/cps_ftp.html.

3. Wages in RTW states are 3.1 percent lower than wages in non-RTW states, after controlling for a full complement of individual demographic and socioeconomic factors as well as state macroeconomic indicators. In dollar terms, being in an RTW state is associated with $1,558 lower annual wages for a typical full-time, full-year worker. Source: Elise Gould and Will Kimball, “Right-to-Work” States Still Have Lower Wages, Economic Policy Institute, April 2015.

4. Source: U.S. Census Bureau, Current Population Survey Outgoing Rotation Group microdata (U.S. Census Bureau CPS ORG), survey conducted by the Bureau of the Census for the Bureau of Labor Statistics [machine-readable microdata file]. Accessed at https://thedataweb.rm.census.gov/ftp/cps_ftp.html.

5. See Gordon Lafer and Alyssa Davis, “Right to Work” Is the Wrong Answer for New Mexico’s Economy, Economic Policy Institute, February 2015; and Jake Rosenfeld, Patrick Denice, and Jennifer Laird, Union Decline Lowers Wages of Nonunion Workers: The Overlooked Reason Why Wages Are Stuck and Inequality Is Growing, Economic Policy Institute, August 2016.

Appendix Table 1

Appendix Table 2

Appendix Table 3

Currently, 28 states, predominantly in the Midwest, South, and Southwest, have right-to-work laws.1 Later this year, voters in Missouri will decide whether to adopt a new RTW law approved by the state’s general assembly last year.

This fact sheet sheds light on what could happen to the wages of black workers in Missouri by comparing the wages of black workers in Missouri and other non-RTW states with wages of black workers in RTW states. We find that wages of black workers in Missouri and other non-RTW states tend to be higher than wages of black workers in RTW states. This finding is based on hourly wage data from the Current Population Survey conducted for the U.S. Bureau of Labor Statistics by the U.S. Census Bureau for 2010–2017, the period since the Great Recession.2

As shown in Figure A, black workers in non-RTW Missouri have generally fared better than their counterparts in neighboring RTW states. The figure compares the median inflation-adjusted hourly wage of workers in Missouri from 2010 to 2017 with median hourly wages of workers in neighboring RTW states in the same period, by race and ethnicity. Black workers in Missouri typically make $14.28 an hour, while the typical black worker in Missouri’s neighboring RTW states (Arkansas, Iowa, Kansas, Kentucky, Nebraska, Oklahoma, and Tennessee) make an hourly wage of $13.65, 4.4 percent less than the typical black Missourian. This wage disadvantage in neighboring RTW states relative to Missouri is true for all racial and ethnic groups studied. Compared with Missourians of the same race or ethnicity, median white workers in neighboring RTW states earn 3.7 percent less and median Hispanic workers earn 7.4 percent less. Every state bordering Missouri, except Illinois, has enacted a right-to-work law.

Figure A

This pattern is not unique to Missouri and its neighbors. In fact, the tendency of wages to be lower in RTW states is even more pronounced at the national level, as shown in Figure B, which compares the median inflation-adjusted hourly wage of workers in RTW states from 2010 to 2017 with median wages in non-RTW states during the same period, by race and ethnicity. Black workers in RTW states typically make 11.5 percent less than black workers in non-RTW states. For white and Hispanic workers, median wages in RTW states are lower than wages in non-RTW states by 15.1 percent and 8.3 percent, respectively. (For median wages by gender and race/ethnicity, see Appendix Table 1.)

Figure B

It’s likely that some part of this difference in wages reflects regional differences in the cost of living. For example, 14 of the 28 states with RTW laws are located in the South where cost of living is generally lower than in the Northeast, where no states have enacted RTW laws. However, the comparisons of wages in Missouri to wages in Missouri’s surrounding states largely controls for this issue, as cost-of-living differences across states within a specific region are likely to be quite small. Further, in national studies that control for other factors than can influence wages statewide, including the cost of living, wages are still at least 3 percent lower in RTW states than in non-RTW states.3 Therefore, although likely not solely responsible for these differences, RTW laws, along with other unfriendly labor practices, contribute to lower wages.

While Missouri workers of every race could see the negative impacts of a RTW law, a larger share of black workers will be affected by any change that affects union representation. That is because 10.5 percent of black workers in Missouri’s private sector are covered by a union contract, compared with 8.0 percent of white workers and 9.0 percent of Hispanic workers.4

But the negative association between wages and RTW laws extends beyond union members. As national evidence has shown, when RTW laws weaken unions’ ability to bargain for higher wages, better benefits, and improved working conditions, it effectively lowers the bar for nonunion employers that once had to compete with employers offering higher standards in order to attract and retain workers. This general lowering of labor standards ultimately hurts the broad middle class—both union and nonunion workers.5

Updated June 19, 2018, to include appendix table.

Endnotes

1. The National Conference of State Legislatures maintains a “Right-to-Work Resources” web page that lists states with RTW laws.

2. Combining data from the years 2010–2017 creates a larger sample and more reliable estimates. Source: U.S. Census Bureau, Current Population Survey Outgoing Rotation Group microdata (U.S. Census Bureau CPS ORG), survey conducted by the Bureau of the Census for the Bureau of Labor Statistics [machine-readable microdata file]. Accessed at https://thedataweb.rm.census.gov/ftp/cps_ftp.html.

3. Wages in RTW states are 3.1 percent lower than wages in non-RTW states, after controlling for a full complement of individual demographic and socioeconomic factors as well as state macroeconomic indicators. In dollar terms, being in an RTW state is associated with $1,558 lower annual wages for a typical full-time, full-year worker. Source: Elise Gould and Will Kimball, “Right-to-Work” States Still Have Lower Wages, Economic Policy Institute, April 2015.

4. U.S. Census Bureau, Current Population Survey Outgoing Rotation Group microdata (U.S. Census Bureau CPS ORG), survey conducted by the Bureau of the Census for the Bureau of Labor Statistics [machine-readable microdata file]. Accessed at https://thedataweb.rm.census.gov/ftp/cps_ftp.html.

5. See Gordon Lafer and Alyssa Davis, “Right to Work” Is the Wrong Answer for New Mexico’s Economy, Economic Policy Institute, February 2015; and Jake Rosenfeld, Patrick Denice, and Jennifer Laird, Union Decline Lowers Wages of Nonunion Workers: The Overlooked Reason Why Wages Are Stuck and Inequality Is Growing, Economic Policy Institute, August 2016.

Appendix Table 1

While 60 percent of adults have a favorable view of labor unions, the most recent data available on union membership shows that, as of 2017, only 10.7 percent of wage and salary workers were union members. This disconnect is the result of decades of fierce opposition to unions and collective bargaining. These efforts have led to the enactment of state laws weakening—and even repealing—collective bargaining rights. At the federal level, corporate lobbyists have blocked attempts to reform outdated labor laws, enabling employers to exploit loopholes in the law and defeat workers’ organizing efforts. It is now standard practice for private employers to hire union avoidance consultants to quash workers’ efforts to unionize. Nearly ten years ago, a study found that roughly one-third of private sector employers fire workers during an organizing effort and over half of employers threaten to close the worksite if workers unionize. It is likely that employer opposition has intensified over the last decade, leaving more workers vulnerable to unlawful retaliation for exercising rights promised them over 80 years ago.

The Workplace Democracy Act, introduced today by Senator Bernie Sanders and several Democratic cosponsors, would begin to restore workers’ right to join together to improve their wages and working conditions. The legislation includes many critical reforms including closing loopholes in the law that enable employers to misclassify workers, denying them the right to organize. The bill also ensures that employers cannot subcontract their way out collective bargaining. And, the legislation ensures that working people have meaningful leverage in the workplace. These reforms would give U.S. workers more bargaining clout which is necessary to ensure a just economy.

State attorneys general can be key allies in protecting workers’ rights. While there are variations in the structure, resources, and jurisdiction of state attorney general offices, these offices often have a range of powers that can enable them to play a key role in advancing and defending workplace protections by ensuring that employers comply with the law. This report describes some of the ways state attorneys general have been involved in protecting workers’ rights.

Introduction: Broader state enforcement is needed to enforce workers’ rights laws

Working people in America are being shortchanged: They are working harder, but inequality is rising and wages for all but the highest-paid workers are failing to keep up with economywide productivity growth (Gould 2018). Even worse, many workers are not being paid what they are owed by their employers. The failure to enforce workers’ rights laws has resulted in billions of dollars in wages being stolen from workers’ paychecks (Levine 2018; McNicholas, Mokhiber, and Chaikof 2017). For example, in the 10 most populous states in the country, each year 2.4 million workers covered by state or federal minimum wage laws report being paid less than the applicable minimum wage in their state—approximately 17 percent of the eligible low-wage workforce.1

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL)—the federal agency responsible for enforcing minimum wage and overtime laws—has been stretched increasingly thin. The number of payroll jobs in the U.S. is more than three times as large as it was in the 1940s—146.6 million in 2017 compared with 45.0 million in 1948—but the number of wage and hour investigators at WHD has remained essentially the same (BLS various years). In 1948, WHD employed one investigator for every 22,600 covered workers; today, WHD has only one per every 135,000 workers (Cooper and Kroeger 2017). As a result, the agency’s ability to effectively police violations of labor law has suffered: from 1980 to 2015, the number of wage and hour violation cases WHD investigated decreased by 63 percent (Cooper and Kroeger 2017).

Moreover, the decline in union rates has put more workers at risk of labor law violations. Workers not covered by unions—those who are neither in a union nor covered by a union contract—are almost twice as likely (4.4 percent) to experience minimum wage violations as those in a union or covered by a union contract (2.3 percent) (Cooper and Kroeger 2017). And unions continue to be under attack: Trump’s budget blueprint calls for funding cuts to the National Labor Relations Board (NLRB), the federal agency charged with upholding private-sector workers’ rights to organize and join unions (Opfer 2018).

These staffing shortages and funding cuts show that the Trump administration is not making enforcement of our nation’s labor laws a priority. To protect workers’ rights to fair pay and fair treatment on the job, funding and resources for federal labor and employment law enforcement agencies need to increase dramatically. In addition, state governments can and should take up the fight to protect workers’ basic rights on the job. State labor departments are usually the primary enforcer of state labor laws, but there are other governmental entities that can and do engage in worker protection activities, including state attorney general offices.

This report explores the ability of state attorneys general to take up enforcement of our labor laws and protection of workers’ rights. By examining enforcement actions among a number of states, this report highlights the various ways state attorneys general exercise jurisdiction to protect workers and enforce labor laws.

General background on state attorneys general

All 50 states and the District of Columbia, as well as Puerto Rico and other territories, have attorneys general. Although 43 of these attorneys general are elected statewide on a partisan basis, the staffs of these offices are generally career and operate in a professional, nonpolitical manner.2

Within the variety of office structures, most state attorney general offices have the following divisions (sometimes called “bureaus”): a division representing state agencies in trial courts; an appeals division, headed by the solicitor general; a division that brings public advocacy enforcement cases; a criminal division (where such jurisdiction exists); and a front office or executive team, including communications, intergovernmental, and outreach staff, a policy director; and other similar positions.

All state attorney general offices share a core commitment to the enforcement of state laws, but they vary widely in their jurisdiction, structure, resources, and areas of greatest focus:

• Law enforcement. Some offices have considerable resources to investigate and open cases on their own initiative and conduct their own law enforcement, while others have funding structures that limit such opportunities.
• Representation of state agencies. State attorney general offices are responsible for representing state agencies in court, and, in some states, they serve as agencies’ general counsel as well. Depending on a variety of resource, institutional, structural, and political factors, attorney general relationships with the administrative agencies they represent vary considerably.
• Public advocacy. In their public advocacy activities, attorneys general tend to intervene in strategic or high-impact cases where there is a pattern of violations.
• Criminal jurisdiction. Some have extensive jurisdiction to enforce criminal laws, while others do not.

Currently, there are several state attorney general offices that have units or staff dedicated to labor enforcement: California, Massachusetts, and New York have longstanding labor units, and, in recent years, new units have been created by District of Columbia Attorney General Karl Racine, Illinois Attorney General Lisa Madigan, and Pennsylvania Attorney General Josh Shapiro, while Washington Attorney General Bob Ferguson has also increased his office’s involvement in labor enforcement (OAG DC 2017b; OAG Illinois n.d.).

Unlike their federal counterparts and state agencies, state attorneys general typically have a broad range of issues they can address that impact policy and people’s lives. In addition to their statutory duties to represent state agencies in court, attorneys general often fulfill a generalized public advocacy role within their states. Attorneys general enforce state laws, educate the public about important rights, propose legislation, file amicus briefs, produce reports, author op-eds, issue opinion letters, make public statements that garner media and public attention, submit comments and provide testimony on state and federal legislation, and, in recent years, have sued the federal government over matters of national importance.

While state attorney general offices, like all government agencies, have limited resources and jurisdiction, they can often be more nimble and flexible than many other government agencies in addressing a range of emerging issues with a range of potential tools.

Roles of state attorneys general in protecting workers’ rights

Enforcement of laws to protect workers

Using their authority to enforce state laws, state attorneys general have played an affirmative role in protecting workplace rights.

Some state attorneys general are granted explicit civil or criminal enforcement jurisdiction. For example, the Massachusetts Attorney General’s Fair Labor Division has sole authority to enforce the Commonwealth’s wage and hour laws, including laws and regulations pertaining to prevailing wage, minimum wage, overtime, retaliation, misclassification of workers, tip pooling, and child labor (Gerstein and Sheikh 2017; OAG Massachusetts 2018b). The Division has the power to investigate work sites, issue civil citations, and bring criminal charges where appropriate. The attorney general of the District of Columbia also has independent enforcement authority for wage and hour laws. States such as Ohio and Florida have enacted their minimum wage laws through constitutional amendments that grant enforcement authority to the state attorney general, although they may not have exercised that authority to date (Gerstein and Sheikh 2017; Levine 2018).3

State labor agencies, through varying arrangements, often refer labor and employment law cases to their attorneys general for enforcement. For example:

• In 2013, the Washington State Attorney General’s Office partnered with the state’s Department of Labor & Industries to launch an extensive investigation into a construction company for multiple violations of the state’s prevailing wage and overtime pay laws. The attorney general’s office recovered more than $64,000 in unpaid wages plus $25,000 in interest for the 14 misclassified workers (OAG Washington 2013).
• In 2017, New York Attorney General Eric T. Schneiderman, upon referral from and with the support of the state Department of Labor, prosecuted the owner of a home health care agency for wage theft. The owner was ultimately sentenced to one year in jail for defrauding 67 employees out of over $135,000 in wages (OAG New York 2017c).

• In 2015, Indiana’s attorney general brought a civil lawsuit, upon referral from its state labor agency, against a trucking company for wrongful termination and retaliation against an employee after that employee reported workplace violence in violation of Indiana’s Occupational Safety and Health Act (Flores 2015).

• Since at least 2007, the Wisconsin Department of Justice (which is the state attorney general’s office) has successfully pursued several cases to recover back wages for employees under Wisconsin’s plant closing law. The law requires employers of a certain size to provide advance notice prior to shutdowns that impact a threshold number of employees (Wisconsin DOJ 2007, 2009b).4 If the Department of Workforce Development cannot recover payment of certain wages owed within a certain timeframe after receiving notice of the closure, the Department is required to refer the case to the Wisconsin Department of Justice.

State attorneys general also often work with a range of other government agencies, not just labor departments, to enforce workers’ rights laws:

• In Washington, the attorney general’s office worked with the Washington State Department of Revenue, Office of Insurance Commissioner, Employment Security Department, and Department of Labor & Industries, among others, to recover over $500,000 in unpaid wages and taxes from an athletic club that had underpaid its employees (OAG Washington 2015a).

Most state attorneys general who are actively engaged in labor enforcement are not specifically charged with enforcing labor laws; nonetheless, they may utilize labor statutes as well as other bases for jurisdiction to address workplace issues, as discussed in the examples below.

Independent contractor misclassification

Numerous state-level studies show that between 10 and 20 percent of employers misclassify at least one worker as an independent contractor (Carré 2015). Independent contractor misclassification5 occurs when employers treat workers as self-employed independent contractors even though they should be considered employees, and thereby deprive such workers of coverage by minimum wage, overtime pay, unemployment insurance, and workers’ compensation laws (Carré 2015).

• The Illinois attorney general has used the state’s Consumer Fraud and Deceptive Business Practices Act to pursue misclassification cases.6 In 2009, the attorney general, along with the Illinois Department of Labor, investigated, sued, and eventually settled with five construction companies for misclassifying workers in violation of the state’s Employee Classification Act, the Illinois Whistleblower Reward and Protection Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act (OAG Illinois 2009).
• In 2018, the New York attorney general obtained the conviction of three Queens-based construction companies for misclassifying over 150 workers as independent contractors to avoid paying them overtime premiums, including a court order requiring the employers to pay $371,447.01 for unpaid wages and $359,747.86 in unpaid unemployment contributions to the New York State Department of Labor (OAG New York 2018a).

Payroll fraud

Payroll fraud occurs when employers pay workers cash wages “off the books” and thereby fail to pay unemployment insurance taxes, procure required workers’ compensation insurance, or withhold payroll taxes, among other things. In some states, efforts to address this conduct are combined with efforts to address independent contractor misclassification, through multi-agency misclassification task forces or other focused enforcement efforts. State attorney general offices have brought cases to address such off-the-books employment (OAG New York 2014a, 2015b).

Wage theft

Wage theft occurs when employers fail to pay workers the full wages to which they are entitled for their labor. This includes, for example, refusing to pay workers the total amount of promised wages, not paying for time spent preparing a workstation at the start of a shift or closing up at the end of a shift, not paying overtime premiums to workers who work more than 40 hours a week, and keeping workers’ tips. Given that wage theft disproportionately affects workers from low-income households—who are already struggling to make ends meet—the loss of wages can have a particularly damaging impact.

• In 2017, the California attorney general filed suit against a janitorial cleaning company for failing to pay workers the minimum wage, underreporting payroll taxes, and providing false payroll information to its workers’ compensation insurance carrier (OAG California 2017).
• In 2017, the District of Columbia attorney general filed a lawsuit against a home health care service provider and its owner for failing to pay 27 employees wages they had earned (OAG DC 2017a).
• In 2014, the New York attorney general recovered $625,000 in restitution and another $300,000 in damages for airport workers who were receiving as little as $3.90 per hour. The investigation began after several workers notified the Service Employees International Union Local 32BJ, which has been organizing airport workers, that they were not earning the minimum wage (OAG New York 2014c).

Joint-employer liability

When two or more businesses determine or have control over a worker’s pay, schedule, job duties, or other important terms and conditions of employment, the joint-employer doctrine allows them both to be held accountable as employers and responsible for violations of employment and labor laws (von Wilpert 2018):

• In 2016, the New York attorney general filed a lawsuit against Domino’s Pizza and three of its franchisees as joint employers. The lawsuit alleged, among other things, that Domino’s required its franchisees to use software containing a payroll system that systematically undercalculated overtime wages for franchisee employees. The attorney general’s investigation revealed that the company “urged franchisees to use payroll reports from the company’s computer system (called ‘PULSE’), even though Domino’s knew for years that PULSE undercalculated gross wages” (OAG New York 2016b).
• In 2017, the Massachusetts attorney general settled a case with the owners of an aerosol factory for nearly $1 million to resolve intentional overtime and minimum wage violations and for hindering the state’s investigation. As a result, approximately 480 affected workers received restitution. In the lawsuit, the attorney general alleged that the company used staffing agencies to pay its workers in an attempt to protect itself from liability. In 2018, the attorney general settled a related case with the staffing company itself (OAG Massachusetts 2017b, 2018a).

Immigrant workers’ rights

Immigrant workers across the United States are often particularly vulnerable to workplace abuse:

• In 2015, the Illinois attorney general sued several employment agencies and restaurants for abusive and exploitative employment practices (OAG Illinois 2015). The attorney general alleged that two restaurants consistently underpaid Latino immigrant workers who were required to work 12- to 14-hour days, six days a week, with no official meal breaks; discriminated against them based on their race and national origin; and housed them in squalid living conditions (OAG Illinois 2015).
• In 2017, the Washington attorney general filed suit against a private prison corporation—which had been contracted by U.S. Immigration and Customs Enforcement to house detained immigrants—for not paying its detainee workers the minimum wage. The attorney general alleged that the corporation paid thousands of detainee workers $1 per day or, in some instances, only snacks and extra food, for labor necessary to keep the prison operational. Washington’s minimum wage is $11 per hour (OAG Washington 2017; Johnson 2017).

Noncompete agreements

Labor mobility is fundamental to the ability to earn good wages. But an estimated 30 million U.S. employees, many of them relatively low-wage workers, are prevented from leaving their jobs for better wages elsewhere because they are bound by noncompete agreements (Eisenbrey 2016; Dougherty 2017). While noncompete agreements are legal in many states, one powerful tool that state attorneys general can use to challenge the use of noncompete agreements is the doctrine of parens patriae. This doctrine “allows a state to bring an action on behalf of its citizen in order to protect its quasi-sovereign interests in their health, comfort and welfare” (Myers 2013). Illinois Attorney General Lisa Madigan’s office exercised its parens patriae authority to challenge the use of noncompete agreements directed at workers in fast-food restaurants, and was able to require 300 Jimmy John’s sandwich restaurants throughout the state to rescind the noncompete agreements it had forced its sandwich makers and delivery drivers to sign (OAG Illinois 2016a, 2016b); Madigan’s office also sued a payday lending company for unlawful noncompete agreements (OAG Illinois 2017a). New York Attorney General Eric Schneiderman has also reached several settlements in relation to employers’ use of noncompete agreements (OAG New York 2016e, 2016f).

Prevailing wage

Prevailing wage laws seek to ensure that government contractors pay wages that are comparable to the local norms for a given trade when those contractors are working on public construction and certain other contracts. Without prevailing wage requirements, contractors can win bids on government contracts by reducing their workers’ wages rather than competing on the basis of efficiency and management skills, materials costs, or the productivity of their workforce. Even after taking into account cost-of-living differences, median wages in construction are almost 7 percent lower in states where there is no prevailing wage law (Eisenbrey and Kroeger 2017).

Some state attorneys general have enforced the prevailing wage law directly. For example, New York’s attorney general has brought cases against contractors for prevailing wage violations in construction of affordable housing, public schools, public housing, and airport construction, among other things (OAG New York 2013a, 2014b, 2016a). In addition, many states have false claims acts, which fight fraud against the government by allowing whistleblowers who report fraud against New York State or local governments to receive a portion of the money recovered (OAG New York 2017a). Several state attorneys general have used their state’s false claims act to enforce prevailing wage laws.7

Criminal prosecutions

New York’s attorney general has obtained over 40 convictions of employers for violating labor laws since 2011. One such case involved a Papa John’s franchisee who created false records and gave workers fictitious names in order to continue to illegally withhold overtime pay after becoming aware that he was under investigation by the U.S. Department of Labor for wage violations.8

Representing state labor agencies in court

A core function of state attorneys general is representing the state in court. Offices may defend labor agencies in their enforcement of state laws when employers challenge that enforcement in court, or they may defend agency decisions in unemployment or workers’ compensation cases. For example, in New York during the past decade, there have been numerous unemployment insurance cases where the New York Department of Labor determined that a worker had employee status, and was not an independent contractor as the employer claimed, and the attorney general’s office defended those determinations in appellate courts.9 This representational function can also come into play in cases with national implications, such as in the Janus v. AFSCME case, in which the Illinois Attorney General’s Office represented the state as a party when defending public-sector unions’ ability to collect fair share fees (OAG Illinois 2018).

In their representation of state agencies, state attorneys general have the ethical obligations and other constraints that accompany representing a client, but their work in this area often has important ramifications for workers’ rights.

Amicus briefs and comments on federal rulemaking

State attorneys general can also influence labor and employment policies and regulations by participating in litigation before the United States Supreme Court and by submitting comments in relation to federal rulemaking.

State attorneys general are active in filing amicus briefs in labor and employment cases, both individually and through coordinated multistate efforts.

For example, several state attorneys general filed a brief in support of the Obama administration’s revised interpretation of the Labor-Management Reporting and Disclosure Act’s (LMRDA) Persuader Rule, a rule that was intended to provide greater transparency and fairness in union elections in the private sector (OAG Massachusetts 2016; von Wilpert 2017). And 21 state attorneys general filed a brief in the Janus v. AFSCME case, urging the Supreme Court to uphold fair share fee provisions in public-sector collective bargaining agreements.10 A coalition of 18 state attorneys general also filed a brief in the Murphy Oil v. NLRB case, speaking out against the use of forced arbitration in employment contracts (OAG Massachusetts 2017a). An estimated 60 million American workers have been forced to give up their access to the courts to resolve employment disputes because of mandatory arbitration agreements in employment contracts (Colvin 2017).

In 2017, several state attorneys general submitted comments to the United States Department of Labor urging the Trump administration to not roll back the 2016 overtime rule,11 which would have updated the overtime salary threshold and given 12.5 million workers automatic overtime protections (OAG New York 2017b; Shierholz 2017).

In February 2018, a coalition of 17 state attorneys general filed public comments opposing the Trump administration’s proposal to rescind 2011 regulations that ensure employees can keep the tips they have earned (OAG California 2018b). It is estimated that, under the proposed rule, employers would have pocketed $5.8 billion in tips earned by tipped workers each year (Shierholz et al. 2017). As a result of this advocacy (in coalition with other groups), the omnibus spending bill enacted by Congress on March 23, 2018, included a provision that provides America’s tipped workers with explicit protection of their hard-earned tips (Conti 2018).

In April 2018, a coalition of 11 state attorneys general wrote a letter to U.S. Secretary of Labor Alexander Acosta, raising serious concerns about the U.S. Department of Labor’s Payroll Audit Independent Determination (PAID) program, a pilot program that allows certain employers who violate labor laws to avoid prosecution and penalties in exchange for simply paying the back wages their employees were already owed under federal law (OAG New York 2018b).

General advocacy

In addition to their law enforcement role, state attorneys general have engaged in various types of advocacy to protect and support workers’ rights.

Public education

State attorneys general have used a variety of approaches to educate the public on labor topics, including public outreach events to educate participants about their rights. Through their websites, state attorneys general often provide information about a variety of labor law−related topics and workers’ rights generally. Some websites also provide public access to formal complaint portals, which can be offered in various languages and may inform complainants that staff will not ask about an individual’s immigration status (Gerstein and Sheikh 2017).

The activities of the Fair Labor Section in Pennsylvania’s attorney general’s office provide an example of extensive outreach in this area. In its first year, the Section conducted labor roundtables with leadership from organized labor across the Commonwealth and participated in dozens of meetings with workers’ rights and other stakeholder groups. During the fall semester, the Temple University Beasley School of Law Sheller Center for Social Justice participated in a clinical experience with the Fair Labor Section, in which students investigated the use of noncompete agreements for low-wage workers in Pennsylvania. Finally, after co-authoring public comments regarding the proposed rescission of the 2011 tip rule described above, Pennsylvania Attorney General Josh Shapiro held press conferences at a diner in Philadelphia and a restaurant in Pittsburgh about the potential adverse effects of the proposed rule change. There was extensive media coverage of these events, which raised public awareness of the issue.

Opinion letters

State attorney general opinion letters are typically issued in response to a formal request for legal guidance by a state agency or state officials. Although not generally binding on the courts, a final opinion typically goes through a formalized review process and carries with it the full weight and authority of the office. Opinions often detail the duties and responsibilities of a state agency or official under state and federal law, or elucidate ambiguous or unclear statutory provisions in a state law (Gerstein and Sheikh 2017). For example, the Delaware and New Mexico state attorneys general each issued opinion letters asserting that the local governments in Sussex County, Delaware, and Sandoval County, New Mexico, did not have the statutory authority to enact local “right to work” ordinances, which would have barred unions from collecting fair share fees in the private sector (Delaware State News 2017; OAG New Mexico 2018).

Reports

In 2014, the New York Attorney General’s Office issued Pinched by Plastic, a report on the payment of wages by payroll cards (OAG New York 2014d). The report was based on responses to inquiry letters sent by the attorney general’s office to approximately 40 national employers that were using payroll cards. It found that virtually all payroll card programs charged fees for card-related activities, and these fees added up, reducing take-home pay received by the lowest-paid workers in the state (OAG New York 2014d). In 2014, the New York Attorney General’s Office also began issuing annual Labor Day reports, providing a detailed overview of the Labor Bureau’s actions to protect the state’s workers (StateAG.org 2017b). Massachusetts began publishing a similar annual report in 2016 to highlight notable cases, investigations, and trends in labor enforcement in Massachusetts (StateAG.org. 2017a).

Legislation

Many state attorneys general have units within their office dedicated to drafting and proposing legislation. Some have used their legislative units to introduce bills that enhance worker protections and target abusive practices. In 2014, then Illinois Governor Pat Quinn signed into law Illinois House Bill 5622, a bill protecting low-wage workers who receive wages through payroll cards from unreasonable fees (OAG Illinois 2014). The Illinois Attorney General’s Office played a key role in this legislation: After receiving complaints from workers about onerous payroll card fees, the attorney general’s office, with assistance from the Illinois Department of Labor, drafted the original legislation, which was eventually sponsored by several state house representatives.

Similarly, after issuing its report on the payment of wages through payroll cards, New York Attorney General Eric Schneiderman’s office also drafted legislation to regulate the use of payroll cards and enhance protections surrounding workers’ access to wages (OAG New York 2015c). In 2016, Schneiderman also proposed a bill to curb the widespread misuse of noncompete agreements (OAG New York 2016c).

Washington Attorney General Bob Ferguson made wage theft the centerpiece of his 2015 legislative agenda. His office introduced legislation barring companies who have repeatedly violated the state’s wage theft laws from doing business in Washington (OAG Washington 2015b).

Multistate advocacy

There is a growing level of multistate action on workers’ rights issues among state attorneys general. In 2016, nine attorney general offices jointly sent letters to a number of retailers about their use of on-call shifts (shifts in which workers are expected to call in an hour or two before the start of a shift to learn whether or not they are needed for the day).12 The retailers that were using on-call shifts terminated the practice. In April 2018, 11 state attorney general offices jointly sent a letter to U.S. Secretary of Labor Acosta, expressing concerns about the Wage and Hour Division’s new pilot program, titled the Payroll Audit Independent Determination, which allows employers to avoid paying damages and penalties by voluntarily paying back wages only to underpaid workers (OAG California 2018a). And in February 2018, all 50 state attorneys general and the attorney general of the District of Columbia signed a letter to Congress seeking an end to mandatory arbitration for sexual harassment cases.13

Conclusion

State attorney general offices can be key allies in protecting workers’ rights. While there is variation in their structure, resources, and jurisdiction, state attorneys general have a range of powers that can enable them to play a leading role in ensuring legal compliance by employers and advancing and defending workplace protections.

Acknowledgments

The authors would like to acknowledge Faisal Sheikh of the American Constitution Society for his work on An Overview of State Attorney General Labor Jurisdiction (Gerstein and Sheikh 2017), which helped inform this report.

About the authors

Terri Gerstein is an Open Society Foundations Leadership in Government Fellow and a Fellow at the Harvard Law School Labor and Worklife Program. Previously, she worked for over 17 years enforcing labor laws in New York State, including as a Deputy Commissioner of Labor and most recently as Labor Bureau Chief for Attorney General Eric Schneiderman. Before her government service, Terri was a Skadden Fellow and Echoing Green Fellow at the Florida Immigrant Advocacy Center (currently named Americans for Immigrant Justice), where she represented immigrant workers and co-hosted a Spanish-language radio show on workers’ rights. She also served as a law clerk for the Honorable Mary Johnson Lowe in the U.S. District Court for the Southern District of New York. She is a graduate of Harvard Law School and Harvard College.

Marni von Wilpert is associate labor counsel supporting EPI’s Perkins Project on Worker Rights and Wages, a policy response team tracking the wage and employment policies coming out of the White House, both houses of Congress, and the courts. Von Wilpert came to EPI in 2017 from the National Labor Relations Board, where she was an attorney in the Appellate and Supreme Court Litigation Branch from 2014–2017. Before coming to Washington, D.C., von Wilpert served as a law clerk for Judge James E. Graves, Jr., on the United States Court of Appeals for the Fifth Circuit (2013–2014). She has a J.D. from Fordham University School of Law and a bachelor’s degree from the University of California at Berkeley.

Endnotes

1. Those states are: California, Florida, Georgia, Illinois, Michigan, New York, North Carolina, Ohio, Pennsylvania, and Texas. See Cooper and Kroeger 2017.

2. See the StateAG.org website.

3. FLA. CONST. art. X, § 24(e) (2004) (“The state attorney general or other official designated by the state legislature may also bring a civil action to enforce this amendment.”); OHIO CONST. art. II, Section 34a (2006) (“An action for equitable and monetary relief may be brought against an employer by the attorney general and/or an employee or person acting on behalf of an employee or all similarly situated employees in any court of competent jurisdiction.”).

4. 2 Wis. Stat. Ann. § 109.11.

5. In addition to independent contractor misclassification, the term “misclassification” is also sometimes used in discussions regarding employers who misclassify workers as being subject to the executive, administrative, or professional exemption from overtime, as well as to refer to public contractors who misclassify workers into the wrong job category for prevailing wage purposes.

6. 8 ILCS Ch. 815 et seq.

7. See, e.g., OAG New York 2017a.

8. See, e.g., OAG New York 2016d, 6–7; OAG New York 2015a.

9. See, e.g., In the Matter of the Claim of Catherine Nance, Respondent. Nyp Holdings Inc., Doing Business as New York Post, Appellant. Commissioner of Labor, Respondent, 2014 NY Slip Op 03720, 2014 WL 3490935; In re Yoga Vida NYC, Inc., 28 N.Y.3d 1013, 64 N.E.3d 276 (2016).

10. See OAG New York 2018c; EPI 2018.

11. The attorneys general of New York, California, Delaware, Illinois, Iowa, Maryland, Massachusetts, Vermont, and Washington all joined the brief.

12. See, e.g., Office of the Attorney General of New York to Aeropostale Inc., “Request for Information Regarding ‘On Call Shifts,’” April 12, 2016.

13. National Association of Attorneys General to Congress, “Mandatory Arbitration of Sexual Harassment Disputes,” February 12, 2018.

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Office of the Attorney General of Massachusetts (OAG Massachusetts). 2017a. “AG Healey Files U.S. Supreme Court Brief to Protect Employees’ Legal Rights” (press release). August 17, 2017.

Office of the Attorney General of Massachusetts (OAG Massachusetts). 2017b. “Factory in Dudley to Pay Nearly $1 Million for Wage Violations, Hindering AG’s Investigation” (press release). November 22, 2017.

Office of the Attorney General of Massachusetts (OAG Massachusetts). 2018a. “AG Recovers $95,000 in Wages and Penalties from Worcester Staffing Agency over Failure to Pay Dudley Factory Workers” (press release). February 23, 2018.

Office of the Attorney General of Massachusetts (OAG Massachusetts). 2018b. “Enforcement Authority” (web page). Mass.gov website. Accessed March 20, 2018.

Office of the Attorney General of New Mexico (OAG New Mexico). 2018. “Opinion Request— Sandoval County Right to Work Ordinance.” Letter to Hon. Benny Shendo, January 18, 2018.

Office of the Attorney General of New York (OAG New York). 2013a. “A.G. Schneiderman Announces Masonry Contractor Will Pay $600,000 for Underpaying Workers on Affordable Housing Project” (press release). August 8, 2013.

Office of the Attorney General of New York (OAG New York). 2013b. “A.G. Schneiderman Secures Guilty Plea from Suffolk Car Wash Boss Who Failed to Pay Minimum Wage” (press release). May 22, 2013.

Office of the Attorney General of New York (OAG New York). 2014a. “A.G. Schneiderman Announces Nearly $4M Settlement with Two NYC Car Wash Chains for Underpaying Workers and Other Violations” (press release). March 6, 2014.

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

Office of the Attorney General of New York (OAG New York). 2014c. “A.G. Schneiderman Announces Settlement with Airport Contractor for Paying J.F.K. Skycaps Far below Minimum Wage” (press release). September 24, 2014.

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Office of the Attorney General of New York (OAG New York). 2015b. “A.G. Schneiderman Announces Conviction and Sentencing of Long Island Landscaping Business and Its Owner for Failing to Pay Employees’ Wages” (press release). October 28, 2015.

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On February 1, 2018, the USDA’s Food Safety and Inspection Service (FSIS) proposed regulations to create the New Swine Inspection System (NSIS), which would allow for an unlimited increase in hog slaughter line speeds—putting public health, worker safety, and animal welfare at risk. In their comments, Shierholz and von Wilpert strongly oppose the proposed Modernization of Swine Slaughter Inspection rule, or any increase in maximum allowable line speeds in hog slaughter facilities above the current allowed 1,106 head per hour, and urge the USDA to withdraw this proposed rule.

“Meat slaughter and processing is a high hazard industry,” said Shierholz. “The pork industry is already one of the most dangerous for workers, who work in cold, wet, noisy, and slippery conditions making tens of thousands of forceful repetitive motions using knives, hooks, and saws. The USDA should protect slaughtering line workers and ensure food safety by withdrawing the Modernization of Swine Slaughter Inspection proposed rule.”

Increasing line speeds without hiring additional workers will almost surely lead to an even greater rate of injuries and illnesses among meatpacking workers. Using Bureau of Labor Statistics (BLS) data, the authors estimate that there were 4,731 nonfatal occupational injuries and 2,747 nonfatal occupational illnesses in hog slaughtering plants in 2016. A paper by University of California-Davis professor J. Paul Leigh found that the average medical and indirect cost of nonfatal job-related injuries and illnesses was $25,670 for injuries and $31,326 for illnesses. Using this data, Shierholz and von Wilpert find that even a 1 percent increase in nonfatal injuries and illnesses as a result of the rule would increase costs by more than two million dollars annually. Notably, this is a conservative estimate, because it does not take into account the potential for increased fatalities or the fact that BLS itself acknowledges that their estimates of workplace injuries and illnesses are likely substantial under-counts.

The authors note that the proposed rule has also moved forward without sufficient data or review, and should be rescinded. The USDA released the proposed rule before the agency completed the required peer review of the risk assessment upon which this rule is based. To adequately assess the rule’s full impact on public health, a final peer-reviewed risk assessment must be completed and available to the public for comment. In addition, USDA must make publicly available any data it has about the risks to workers.

“For the sake of keeping hard-working people safe from harm and making sure the pork we eat is safe, we ask the USDA to extend the comment period until a peer-reviewed risk assessment is complete,” said von Wilpert. “In order to protect worker safety, public health, and animal welfare, we urge the USDA to oppose any line-speed increases in hog slaughter plants and withdraw the proposed Modernization of Swine Slaughter Inspection rule.”

In 2016, nearly 5,200 workers were killed on the job in the United States—14 workers every day—the highest number of workplace deaths in years. But that is only a part of the deadly toll: each year, more than 50,000 workers die from work-related disease. With this awful trend, any rational government would be proposing a significant increase in the budgets of our worker protection agencies and a rapid expansion of regulatory protections for workers.

Unless you’re just waking up from a 15-month nap, you know that workers’ rights—and especially worker safety and health—are under attack by the Trump administration like never before. And not only are workers under attack in their workplaces, but thanks to actions by the Environmental Protection Agency (EPA), the Interior Department, the Department of Agriculture and others, they’re also under attack where they live, where they eat, and where they vacation.

But these attacks didn’t originate in the fevered dreams of Donald Trump. What we’re seeing is the attempted wholesale implementation of the long-standing wish list of the conservative anti-worker Republicans, the Chamber of Commerce, and its anti-worker corporate allies.

And the attacks are not just aimed at the Occupational Safety and Health Administration (OSHA), but at a variety of other agencies— and even the scientific process underlying the ability of government agencies to legally protect workers from getting injured, killed, or sickened in the workplace.

It would take a long time to detail every attack on worker safety and the safety of the communities they live in, but I’ll list just a few here:

One of Donald Trump’s first actions as president was to issue an executive order requiring agencies to repeal two protections for every new one issued.

So, if OSHA issues a new standard to protect workers from workplace violence, which two protections will OSHA remove? Maybe taking away a worker’s right to receive fall protection, or to be protected against trench collapses, or protection from being exposed to illnesses like hepatitis B?

Two years in a row, Trump has proposed the elimination of the Susan Harwood Worker Training Grant program—a program that provides funding to non-profit institutions like colleges, labor unions, small business associations, and worker rights groups to provide hands-on training to vulnerable workers and workers in small businesses. Happily, Congress funded the program this year, but Trump is trying to get rid of it again in next year’s budget.

OSHA is also attempting to roll back important worker protections issued during the Obama administration like beryllium protections for construction and maritime workers, and an important recordkeeping regulation that will provide information to OSHA and the public about companies’ safety and health record. And the Mine Safety and Health Administration (MSHA) is considering weakening coal dust protections. Meanwhile, important rules to protect workers from the hazards of workplace violence, infectious diseases, and chemical plant disasters languish at OSHA.

And OSHA completely abandoned work on more than a dozen new rules including rules on combustible dust, noise in construction, and protecting workers from being backed over by construction vehicles.

Under the radar, OSHA withdrew its “walkaround policy” that gave nonunion workers the right to have a representative participate in OSHA inspections and stopped posting information on the home page of its website on all worker fatalities reported to OSHA.

And speaking of eliminating programs, the Trump administration has also proposed to eliminate the tiny Chemical Safety Board, the only government agency that performs root cause analyses of chemical plant incidents and makes recommendations to industry, labor and government agencies.

Research is also something the Republicans seem to think is bad as shown by administration’s proposal to slash the budget of the National Institute for Occupational Safety and Health.

Meanwhile, the Department of Agriculture, at the behest of the meat industry, is attempting to cut back on inspectors and speed up the line in poultry and hog production plants. These actions would not only undermine food safety, but also endanger workers who already suffer astronomical rates of musculoskeletal disorders. Fortunately, a public outcry has beaten back the USDA’s attempt to speed up poultry lines, but they’re currently driving to speed up hog production lines.

Not to be undone, embattled EPA administrator Scott Pruitt is also attacking worker protections (along with the air, water, and earth). Pruitt has suspended EPA’s chemical safety improvements that were blazing a path for OSHA’s Process Safety Management (PSM) standard by introducing the concept of inherently safer processes into chemical plant safety planning and improving coordination between chemical plants and emergency responders. The modernization of EPA’s regulation and OSHA’s PSM standard stemmed from the 2013 explosion of a fertilizer facility in West, Texas that killed 12 emergency responders and three others.

Pruitt is also re-inventing the way science is used—or not used—to form the basis for environmental —and possibly worker—protections. Under the flimsy umbrella of “transparency,” a proposed new rule would allow EPA to only consider studies for which the underlying data are made available publicly. That means that landmark studies that the chemical industry hates, linking air pollution and pesticide exposure to harmful health effects, could not be considered because the studies used people’s confidential medical and occupational histories.

And it gets even more depressing. While government legal procedures put some limits on the ability of Pruitt and Secretary of Labor Alexander Acosta to roll back worker and environmental protections, one area where the Trump administration has seen success is in the appointment of federal judges who are committed to reining in what conservatives call “the administrative state” by limiting the discretion that agencies like OSHA or EPA have when issuing and enforcing complex regulations.

The only good news is that Acosta has publicly affirmed his belief in the need to enforce the laws on the books. That’s a good thing—as long as we still have laws on the books. But the White House and corporate America are still trying to attack OSHA’s enforcement ability and roll back even more regulatory protections. It will take everyone’s work to ensure that OSHA doesn’t further undermine regulatory protections or stray from the path of the OSHA’s mission: to ensure a safe workplace for every American worker.

The need for increased efforts to protect workers is great, but the means are lacking. OSHA has not received a budget increase since 2010 and flat budgets mean fewer resources. Federally, OSHA now has only 764 safety and health inspectors and state OSHA programs have a combined 1,057 inspectors.

OSHA’s current budget (FY 2018) of $553 million amounts to $3.61 per worker. According to the AFL-CIO last year, if OSHA were to inspect every workplace just once, it would take 159 years. And that figure continues to get worse every year.

What is to be done?

Action by unions, lawsuits, and media oversight have slowed, but not stopped, the assault on workers by the Republican Congress and the Trump administration. The best way to stop them is to take back the House of Representatives—or even the Senate—in November.

Meanwhile workers and activists need to ensure that politicians, journalists, and government agencies are aware of what working people go through every day and the struggle takes to simply come home alive and healthy from work in this country. Only by educating, standing up, and fighting back will this scourge end.

Workers’ Memorial Day is the time to revitalize our commitment to fight for the living!