Anti-equity efforts have also extended beyond the classroom, impeding the ability of federal agencies to uphold civil rights and advance DEIA, both within their institutions and in their broader enforcement work. Still, the war on equity in postsecondary education continues to handicap universities and threatens postsecondary enrollment.

The impact of the SCOTUS ruling and anti-DEI efforts

Following the Supreme Court’s 2023 decision striking down race-conscious admissions, many universities scrambled to adopt race-neutral alternatives. While the Court’s opinion still permits consideration of an applicant’s personal experiences with race—such as how it may have shaped their life through discrimination or served as a source of inspiration for their pursuits—colleges that previously factored race into admission decisions will likely need to revise their practices significantly. A 2023 study found that 91 of 123 selective colleges and universities considered race in admissions prior to the ruling.

At the same time, states have accelerated efforts to restrict diversity, equity, and inclusion (DEI) initiatives. Dozens of states have introduced legislation to eliminate DEI offices, ban diversity training and courses, prohibit identity-based hiring preferences, and outlaw diversity statements. Since 2023, nearly 135 anti-DEI bills have been introduced across 29 states and in Congress; as of June 2025, 29 of those bills have been signed into law.

These coordinated attacks on equity in higher education threaten to roll back decades of progress. For years, race-conscious recruitment, admissions policies, and student support programs have helped expand college access for students of color. Now, with the Court’s decision and mounting anti-DEI laws, those hard-won gains are at serious risk of being undone.

To understand what’s at risk, it’s important to recognize just how much progress has been made in diversifying public college campuses over the last several decades.

Trends in postsecondary public enrollment

The racial and ethnic composition of students at public four-year colleges has changed dramatically since the 1970s. Data on fall enrollment from 1976 to 2023 show that public higher education is more racially diverse than ever before—especially after a notable jump in enrollment in 2010 following the Great Recession. Proposed rollbacks to DEIA policies threaten to undermine decades of progress. As shown in Figures A and B, the most significant enrollment gains since 1976 can be attributed to Hispanic and Asian American and Pacific Islander (AAPI) students.

Figure A

Figure B

Hispanic student enrollment grew from 129,300 in 1976 to nearly 1.94 million in 2023—a 15-fold increase. Their share of total public four-year enrollment rose from 2.7% to 22.1%, now representing over one in five students. The number of AAPI students grew from 87,500 to 783,600, increasing their share from 1.8% to 8.9%. Black student enrollment also increased—from 421,800 to 1.01 million—but their proportional representation has stagnated since 2010, slipping slightly from 12.1% to 11.5%. American Indian and Alaska Native students, meanwhile, saw modest growth in numbers but a slight decline in share, from 0.9% in 2010 to 0.7% in 2023.

Notably, though not included in the percentage distribution data, nonresident student enrollment rose from 106,000 in 1976 to 534,100 in 2023. These students are particularly vulnerable to the dual threat of anti-immigration and anti-DEI efforts. Shifts in the racial and ethnic composition of students reflect not just demographic change, but also the impact of equity-driven recruitment, admissions, and efforts to support both domestic and international students—many of which are now under attack.

Despite these gains, racial equity in higher education remains fragile. The Supreme Court’s 2023 ruling against race-conscious admissions, combined with a wave of anti-DEI legislation and executive actions, threatens to strip away critical tools that helped build a higher education system that reflects the nation’s diversity.

DEIA rollbacks harm underrepresented students the most

Rolling back DEIA policies will not only harm underrepresented students but also weaken the overall strength of the U.S. workforce and economy. Expanding inclusive pathways to postsecondary education for students of color plays a critical role in improving their long-term economic outcomes. For example, in 2024, Black workers with only a high school diploma had a median hourly wage of $18.41. With a bachelor’s degree, that wage rose to $28.13—nearly $10 more per hour. For those with a graduate degree, the median hourly wage jumped to $37.71.

Beyond wages, research shows that reducing discrimination in the workplace has historically led to stronger economic growth. Between 1960 and 2010, the convergence in wages and occupations of women and Black men relative to white men accounted for 41.5% of the nation’s growth in GDP per capita. This convergence was driven largely by gains in educational attainment and reductions in labor market discrimination—both of which opened doors to higher-skilled, better-paying jobs. Attacks on DEI efforts, both inside and outside the classroom, threaten to reverse this progress and limit the potential for future generations.

Since the 1970s, DEIA and affirmative action policies have been used to foster more diverse classrooms and campuses. At institutions like MIT, for example, a proactive affirmative action program in the 1970s helped create a critical mass of Black doctoral students during the first half of the decade. Programs like these generate long-term value, for the individuals who participate in these programs and for the country as a whole. Yet in a country where diversity and equity are increasingly vilified, the benefits of these programs are now under serious threat.

Today, hundreds of thousands of students of color rely on an inclusive higher education system. But diversity doesn’t just benefit the underrepresented—it enriches the educational experience for all students. Exposure to a range of perspectives and lived experiences is essential for critical thinking, empathy, and preparing students to engage with a complex, interconnected world. As the country becomes more diverse and the share of students of color continues to rise, higher education institutions must remain equitable and inclusive spaces where all students can thrive.

Without protected and equitable pathways for students of color, we risk returning to a higher education system defined by exclusion rather than opportunity. Policymakers must understand that diversity is not a liability—it is a national strength. Embracing diversity as an asset is key to building a more equitable society and a more competitive economy. Reversing course now would be a costly setback for equity, opportunity, and our nation’s future.

Most of the media coverage and analysis of the decision has glossed over one major impact the decision could have: it could help the Biden administration better protect labor standards for all workers, including migrant workers. While helping workers was not the rationale of the decision, it could be one of its lasting impacts.

The president has broad authority to set immigration enforcement priorities

In 2021, the Biden administration’s Department of Homeland Security (DHS) issued a memo outlining its immigration enforcement priorities: threats to national security, threats to public safety, and threats to border security. A section in the memo also declared that immigration enforcement should not be used to retaliate against noncitizens who attempt to exercise their rights, including labor rights. Louisiana and Texas challenged the legality of the memo.

The enforcement priorities in the DHS memo were similar to those under the Obama administration and partly a response to those under the Trump administration, which had made virtually all unauthorized immigrants a priority for removal from the United States, without regard for individual or mitigating circumstances that could justify allowing them to remain in the country—like whether they had a clean criminal record or had lived in the United States for many decades and had deep family ties.

The Supreme Court’s rejection of the challenge to the DHS memo means that the principle of prosecutorial discretion in immigration enforcement is now more firmly established. It also confirms what President Biden and other presidents before him have asserted, namely, that the executive branch is not mandated by law to arrest every single unauthorized immigrant—which, although the immigration enforcement agencies get about $25 billion per year from Congress, is something they nevertheless do not have the funding and resources to accomplish, as the Supreme Court pointed out. Ultimately, the decision means that President Biden, and future presidents, can decide whom they wish to target with the resources available when enforcing immigration laws.

If there is a valid reason, the unauthorized migrants who are not priorities and targets for enforcement may receive one of the available forms of temporary protection from deportation, such as deferred action, parole, or deferred enforced departure, which are similar but have some key differences. And under current federal regulations, the recipients of these temporary forms of deportation relief can also be eligible for an employment authorization document (EAD)—also known as a work permit—if they have an economic need for it.

However, the Supreme Court did not say that the executive branch’s ability to exercise prosecutorial discretion in immigration is absolute. As Vox’s legal analyst Ian Millhiser rightly pointed out, some of the language in the decision still left the door open for future challenges. Justice Kavanaugh, who authored the decision, wrote explicitly that, “This holding does not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions,” and lists five possible scenarios. One of them states:

…a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.

The plain language here suggests that if an unauthorized migrant is the subject of nonenforcement (i.e., is the recipient of a temporary deferral from deportation) and that nonenforcement is also coupled with a grant of government benefits or a legal status, then those benefits or status may be the hook necessary for someone to challenge the exercise of prosecutorial discretion.

It must be noted that current forms of individualized nonenforcement like deferred action or parole do not grant a legal status and recipients are not entitled to federal public benefits. Those who wish to challenge a president’s immigration enforcement priorities might argue that the issuance of employment authorization documents to persons who are granted deferred action constitutes a significant government “benefit”—one that allows them to have standing before the federal courts. They may also directly challenge the ability of the executive branch to issue EADs. But such challenges would likely be based on a misunderstanding of the law that authorizes the issuance of EADs.

As I’ve written about in detail, while the authority to grant deferred action to unauthorized migrants rests on the president’s prosecutorial discretion, the authority of U.S. presidents to grant an EAD to whomever they so choose—regardless of immigration status—is plainly and clearly set out in the law. Thus, DHS’s authority to grant work permits should not be viewed as a federal benefit that permits a challenge to enforcement priorities.

Deferred action for workers helps hold lawbreaking employers accountable

The importance of an EAD for migrants who have been granted deferred action cannot be overstated. The ability to work lawfully means having labor rights that are more meaningfully enforceable in practice. When workers have an EAD, employers cannot use immigration enforcement to threaten workers and silence them from speaking out about workplace violations like wage theft. When workers don’t have an EAD, they’re more likely to be victimized by employers. Research shows unauthorized migrants are twice as likely to be the victims of wage theft, for example.

But from the perspective of enforcing the law, deferred action is also an essential tool for federal agencies to hold lawbreaking employers accountable. That helps explain why the Biden DHS announced in January a streamlined process that provides clarity on how migrant workers who are victims of—or witnesses to—labor and employment violations can come forward to request temporary protection from deportation through deferred action, coupled with employment authorization.

Providing deferred action for workers in labor disputes on a case-by-case basis, as the Biden administration is doing, falls squarely within the prosecutorial discretion authority that the Supreme Court has just affirmed. There’s no question that using this authority will help protect workers and whistleblowers who come forward to report labor and workplace violations.

Given the current budget constraints of federal labor standards enforcement agencies, which are funded at just one-twelfth the rate of immigration enforcement agencies, this will act as a force multiplier that helps underfunded and understaffed labor agencies fulfill their missions. And ultimately, this will make workplaces safer for all workers and level the playing field for law-abiding employers.

In short, Louisiana and Texas brought such a frivolous case against Biden’s immigration enforcement priorities that even an ultra-right-wing Supreme Court ruled almost unanimously that the states didn’t even have the right to challenge it. Thanks to the decision in U.S. v. Texas, the Biden administration’s power to use prosecutorial discretion when enforcing immigration laws is now on even firmer ground than it was before.

This decision marks a significant setback for colleges, which have relied on this tool for over 40 years to enhance racial diversity on their campuses and compensate for decades of both explicit and implicit race-based exclusion. Colleges must now explore options like targeted recruitment programs and using other metrics such as household income and wealth as substitutes for race-based admissions. However, flagship schools from states that previously banned affirmative action and used these alternative tactics have a poor track record of success in achieving meaningful diversity gains in their student body without using affirmative action. 

Lessons from flagship state schools 

Over the years, a total of nine states have implemented bans on affirmative action. This policy shift forced top educational institutions like the University of California and the University of Michigan to abandon race-based admissions and find new ways to admit diverse student bodies. As a result, these universities made significant efforts to foster racial diversity by investing hundreds of millions of dollars in outreach programs. However, according to two amicus briefs in support of affirmative action filed by these two universities last year to the Supreme Court, these endeavors have proven to be ineffective. Both university systems revealed perpetually low enrollment rates among students of color despite their significant investment in alternative ways to boost diversity among the applicant pool and student body.

Following California’s implementation of Proposition 209 in 1996, which banned the use of racial preferences in admissions, the state experienced a significant decline in enrollment rates across its educational institutions. Most notable was the decline in Black student enrollment at the University of California, Los Angeles (UCLA). In 2006, only 96 students (less than 2%) self-identified as Black out of a freshman class of nearly 5,000 students. 

Although enrollment rates have shown some improvement since then, disparities in enrollment persist. For example, a mere 228 students (3%) at the University of California, Berkeley identified themselves as Black out of a nearly 7,000-strong freshman class in the fall of 2022. By comparison, the 2021–2022 high school graduating class in California had approximately 8,700 Black students that met the requirements for admission into the University of California system. These limited strides in fostering diversity have come at a substantial cost to the University of California system, exceeding half a billion dollars in investments since 2004.

Likewise, at the University of Michigan in Ann Arbor, enrollment rates for students of color experienced a decline following the state’s adoption of Proposal 2, commonly known as the Affirmative Action Initiative, in 2006. This voter referendum also led to a state constitutional ban on race-conscious admissions. By 2021, Black enrollment stood at a mere 4%–a three percentage point drop from 2006. This is despite the growth of college-age African Americans in Michigan from 16% to 19%. Clearly, the University of Michigan has encountered challenges in ensuring that their flagship school reflects the diverse demographics of the state. 

The ban on affirmative action has made it more arduous for many universities to achieve proportional representation of underrepresented groups and imposes new constraints in racial equity and equal opportunity in higher education.

Class and wealth are not adequate measures in capturing diversity

As an alternative to race-based admissions, certain schools and advocates have suggested considering socioeconomic status—including wealth—as a criterion for preference in college admissions, irrespective of race. However, this race-blind alternative falls short in capturing the full scope of what race-based admissions could achieve. Focusing solely on socioeconomic status fails to address the specific obstacles that affirmative action was intended to combat. 

One significant drawback of this race-blind approach is its potential exclusion of deserving middle-class Black, Brown, and Native American students. These students may not meet the criteria for preferential treatment based on low socioeconomic status, despite facing racial disparities and encountering systemic barriers that hinder their educational opportunities. By overlooking the importance of race, this alternative fails to acknowledge the need to uplift marginalized racial and ethnic groups who may not fit neatly into a socioeconomic-based framework.

Moreover, according to Richard Rothstein, author of The Color of Law: A Forgotten History of How Our Government Segregated America and the recently released Just Action: How to challenge segregation enacted under the color of law, when considering wealth-based admissions, it is important to acknowledge the significantly larger population of white Americans compared with African Americans. While a higher proportion of the Black population falls into the low-wealth category, the potential pool of low-wealth applicants would still consist of a significantly larger number of white students. According to Federal Reserve data from 2019, 31% of youths from households in the bottom quarter of the national wealth distribution (with a net worth of $12,400 or less) are Black. Even if preference was given to students in the bottom half of the wealth distribution (with a net worth of $121,700 or less), a smaller proportion of the eligible low-wealth applicants—24%—would be Black. Despite the belief that Black people may be overrepresented in a wealth-based program, the alternative would still be flawed in capturing many Black students.

Class-based admissions based on household income have also been a popular alternative to race-based admissions, but similarly to wealth, this criteria would fall short of the diversity objectives set by admissions offices, and undermine efforts to address discrimination. According to a study by Georgetown University’s Center on Education and the Workforce, selective colleges that are prohibited from considering race and ethnicity in admissions decisions may regain some level of racial and ethnic diversity by adopting class-conscious admissions practices. However, the study highlights the considerable difficulties these institutions would encounter in achieving student bodies that accurately reflect the demographic diversity of their state’s high school population, which typically exhibits higher rates of enrollment across different racial groups compared with universities. The findings suggest that maintaining or surpassing existing representation without race-conscious admissions would necessitate a complete overhaul of the admissions system, requiring changes in applicant evaluation and consideration criteria. While socioeconomic status can be a relevant factor in addressing certain forms of disadvantage—and college education should absolutely be more accessible to low- and middle-income students of all races—socioeconomic status alone cannot fully replace the multifaceted impact of race-based admissions. 

The pending Supreme Court decision on student loan debt forgiveness adds an additional layer of complexity to using socioeconomic status as a proxy for race in achieving diversity. Student loan debt is yet another barrier hindering students of color from accessing higher education. Without student loan debt forgiveness, students of color hailing from low-income backgrounds encounter even greater disparities in economic outcomes. Irrespective of whether these students gain admission to universities based on their socioeconomic status, the intersection of student loan debt, structural racism, and poverty magnifies the existing gaps in their ability to afford and enroll in higher education institutions. This could impede efforts to achieve a more inclusive and diverse student body based on race and socioeconomic factors. 

The complexities of racial discrimination and the need for targeted measures to address historical injustices cannot be adequately captured by a race-blind approach alone. It is crucial to recognize the unique and ongoing struggles faced by underrepresented racial and ethnic groups and continue to advocate for holistic solutions that address both socioeconomic disparities and the significance of race in admissions policies. Affirmative action programs in higher education came into existence specifically to rectify the history of race-based exclusion, legally enforced segregation, and quota systems that capped the number of nonwhite or other minority students permitted to enroll at colleges and universities across the country. This history of discrimination had everything to do with barring students based on race, regardless of their class, and led to many of the enrollment disparities we still see today at many institutions.

What can universities do?

The adoption of race-blind admissions would not provide greater benefits to students of color compared with the existing impact of race-based admissions. Instead, any alternative approach would likely harm the enrollment rates of these marginalized groups and prove financially burdensome to implement. It is imperative to recognize the significance of race in addressing systemic inequalities and to prioritize inclusive measures that safeguard access to higher education for underrepresented communities.

Universities should persist in advocating for affirmative action specifically for Black, Brown, and Native American applicants. In an open letter issued a month before the Court’s ruling, the presidents of 27 liberal arts colleges stated, “To fulfill the promise of economic and social mobility, we need to continue rectifying the systemic barriers that have kept so many talented students of color out of higher education.” Rothstein argues that university presidents defending affirmative action programs on the grounds of rectifying past injustices could sway lower-court judges and dissenting justices to support affirmative action as a valid remedy. This approach may also pave the way for future Supreme Court justices to reject race-blind ideologies that currently impede reform efforts. Ultimately, maintaining intersectional admissions processes that include race is essential to promoting equity and redressing systemic barriers to higher education.

We can all hope the law will prevail, and that some of the moves to install new codes of ethics can restore some of the integrity of the court, but the Republican-appointed justices’ track record is dismal when it comes to empowering workers.

The Supreme Court has played an important role in the decades-long campaign to erode workers’ rights in this country. In particular, the Supreme Court has issued rulings that have undermined everything from workers’ rights to form unions, the ability to build strong unions, and health and safety on the job. This term, the Supreme Court once again sided with corporations in Glacier Northwest v. Teamsters to make it easier for employers to sue unions over their decision to strike.

Beyond Glacier, here’s a rundown of several key decisions that hurt workers just in the last few years:

Epic Systems

Corporate America had been trying to push employees into arbitration to settle workplace disputes or labor violations, instead of allowing them to exercise their right to take legal action against the boss, either individually or as a class action suit.

This idea that employees and employers have equal power has been the leaning of the conservatives on the court. In a 5–4 decision, the court sided with the corporation in the 2018 Epic Systems Corp. v. Lewis case, claiming workers could get a fair shot at hammering out disputes in arbitration. Under the Supreme Court decision, contractual provisions for individualized arbitration proceedings must be enforced, despite workplace arbitration agreements often being a condition of employment. As Justice Ruth Bader Ginsburg noted in her dissent, the idea that employers can force workers to give up their rights in court in order to retain their jobs violates the basic premise of the National Labor Relations Act (NLRA) and ignores the unequal power between employers and employees.

Janus

Janus v. AFSCME was a notorious case that corporate-backed, right-wing legal foundations supported all the way to the Supreme Court, which ruled that public-sector employees would no longer be required to pay union dues if they decided not to become union members. In a 5–4 decision, the court overturned 41 years of labor law precedent that made clear that all workers represented by a union benefit from the union’s efforts to negotiate for better working conditions and, as a result, should be required to pay dues.

Our research found that the Janus decision was expected to have significant impacts on public-sector workers’ wages and job quality as well as on the critical public services these workers provide.

Cedar Point

Cedar Point Nursery v. Hassid was a case involving an employer challenge to a California regulation that allows union representatives to visit the property of agricultural employers—in limited circumstances—to carry out efforts to organize the hundreds of thousands of California farmworkers who work in hazardous and low-paying jobs and who suffer high rates of wage and hour violations.

In a 6–3 decision, the court’s conservative justices ruled that the California regulation constitutes a per se physical taking of the employer’s property, which in practical terms means union organizers will no longer have the right to access the farms where farmworkers are employed. This will have devastating impacts because farmworkers are often difficult to reach since they work in remote locations and in many cases reside in housing that is owned and controlled by employers, so access to their workplaces is critical to organizing efforts. In addition, most farmworkers are immigrants, and a majority of them either lack an immigration status or have a precarious and temporary immigration status that their employers control, making it nearly impossible in practice for them to assert their workplace rights or to seek out unions and worker rights organizations.

The Supreme Court’s decision means that the already difficult task of organizing farmworkers will be even harder now for unions, and there could be additional impacts beyond labor organizing.

Looking ahead, there needs to be a movement to implement enforceable ethical standards for Supreme Court justices, who should not be allowed to accept lavish tropical vacations or tuition payments or any other pricey swag that business moguls shower them with, or else we risk further weakening of worker protections in this country.

While it may be theoretically possible that a justice could receive such gifts and not have it impact their view of a specific case, it is unrealistic to believe that it won’t, and it creates a blatant appearance of impropriety. Any reasonable person would have to assume that such gifts would influence the decision of a justice, who is supposed to be an impartial public servant. Establishing meaningful ethical standards is particularly important now, given that a host of cases will soon be coming before the court that could further gut worker protections that were put in place to empower workers.

There’s been a lot of writing about the case, but here’s the upshot: Workers still clearly have the right to strike, but the Court’s decision opens the floodgates for employers to weaponize financially burdensome state court litigation as a pressure tactic against workers and unions. The decision could have been worse—it contains some guardrails that may help limit the damage and provide unions with defenses because it doesn’t allow lawsuits for economic harm under any and all circumstances. But it’s still a very harmful decision that hands employers another way to suppress worker organizing and reduce worker power.

As with abortion, guns, and so many other issues, Glacier shows just how out of touch the Supreme Court is with the national pulse. The opinion was issued amid a wave of union organizing and worker action not seen in decades, including at household-name companies like Starbucks, REI, and Kellogg’s. Television and film writers—members of the Writers Guild—have been on strike for a month. Public opinion of unions is the highest it’s been in my lifetime, and a majority of workers surveyed say they’d join a union if they could.

However, only around 6% of private-sector workers are unionized. Our weak and outdated labor laws make it terribly hard to unionize, and employers routinely violate these laws by firing, threatening, and otherwise retaliating against workers who try to exercise their rights. This context makes last week’s decision even worse; it’s enraging and tragic that the Supreme Court has once again put its finger on the scale in favor of corporate America.

So, what happened in this case? Workers for Glacier, a corporation that sells and delivers quick-dry concrete, went on strike during an impasse in negotiations after their prior contract—with its no-strike clause—expired. Once the strike started, drivers returned to the company parking lot, where they left the trucks running with the drums that contain the concrete still turning, to avoid drying the concrete and damaging the trucks. Although the strike was predictable, Glacier had no contingency plan, and scrambled to remove the concrete from the trucks’ drums. The trucks were unharmed, but some concrete was unusable. Glacier filed a tort lawsuit against the union in Washington state court for financial damages caused by the strike.

Typically, state courts can’t get involved in matters covered by our federal labor law—the National Labor Relations Act (NLRA)—because Congress intended to create a uniform national labor policy. There are a few exceptions to NLRA preemption, though. Glacier claimed that the destruction of a day’s worth of concrete was serious enough to fall into one of those exceptions, for situations in which matters are deeply rooted in “local feeling and responsibility,” such as if workers intentionally vandalize or destroy company property.

The Supreme Court’s majority decision in Glacier charted a new path, holding that the union should, in fact, be subject to an employer tort lawsuit because of financial losses caused by the spoilage of the concrete. They focused on the timing of the strike: the union didn’t strike immediately but began working, mixing concrete and starting deliveries. And although the trucks were unharmed, the Court focused on the potential for damage to trucks and differentiated the situation from analogous cases when food products had spoiled during a strike. 

This decision has deeply harmful consequences for workers’ right to strike: If workers or their unions could be sued any time a product went bad during a strike, or when a strike’s timing was especially damaging, the right to strike would be illusory for many—perhaps most—workers. For example, every aspect of our food chain involves perishable products, from food manufacturers to supermarkets to restaurants. Hospitality industry employers may be unusually vulnerable to strategically timed strikes. Even without employers filing a lawsuit, the threat of litigation is likely to be considered in unions’ calculations about whether, when, and how to strike.

The decision is not categorical, though. As noted above, it includes some guardrails, likely inserted by Justices Elena Kagan and Sonia Sotomayor, whose inclusion on the opinion is otherwise perplexing and has been the source of considerable speculation. (My guess: they joined to avoid an even worse decision by a different set of five justices.) The opinion focuses on the potential harm to the trucks (which didn’t even happen) and that the workers themselves “prompted the creation of the perishable product” (the concrete) by showing up and letting the day’s work get started. Many striking situations, including those involving perishable products, may not fall into this category.

But what does it mean to “prompt the creation” of a perishable product? In Glacier, it was simply a matter of showing up and starting work, rather than striking at the break of dawn. Do writers create a perishable product if they go on strike mid-season, when a show’s plot has already thickened? More starkly, when, exactly, could a food manufacturing worker go on strike? In any event, even though this language could limit unions’ liability, it’s always better not to be sued in the first place.

There should logically be some potential silver lining: Could relaxation of federal labor preemption open the door to worker tort lawsuits against an employer whose strategic timing of an adverse employment action causes unusual harm to workers? Consider a company that fires a union supporter they know is eight months pregnant, or one who’s been recently diagnosed with a serious illness and is reliant on company health insurance. There’s a good-for-the-goose, good-for-the-gander argument that in a fair world could be employed to help workers. If such cases ever reached the Supreme Court, it’s unlikely they’d get a fair hearing, though, given the majority’s strong anti-worker leanings.

Overall, it’s a grim outcome for workers, with Justice Ketanji Brown Jackson as the lone holdout fully championing workers’ right to strike. In addition to fully grasping what was at stake, she also noted in her dissent that this matter and these kinds of matters should be handled by the National Labor Relations Board (NLRB), the federal agency with expertise in labor relations and charged with enforcing our labor laws.

Last week’s decision is also one more example of the Supreme Court rejecting the value of the administrative state: the justices muddled through their own thoughts about labor relations despite the existence of an entire agency with deep expertise in precisely that topic. Untethered to the administrative process, last week’s case has the potential to lead to a massive uptick in worrisome tort litigation by employers against workers and unions that go on strike, and this is from a court whose majority is steeped in a conservative political movement that vilifies tort lawsuits.

The Supreme Court, once more, has thrown its considerable weight against working people. Every time the Court rules on cases related to workers or labor, it feels like Groundhog Day: glaringly clear, yet again, how urgently we need court reform, as well as labor law reform.

The Glacier decision is a totally inappropriate and damaging judicial assist to corporations and employers. But alone, it’s not likely to thwart the current momentum of workers seeking a voice on the job and a better deal. As Service Employees International Union President Mary Kay Henry reminds us, workers in America still have the right to strike, a right that is “fundamental to our freedom as working people.” The Supreme Court has made it harder, but they can’t take that right away.

The immediate practical impact of the SCOTUS ruling on DACA cannot be overstated: It means 650,000 undocumented U.S. residents who were brought to the United States as children won’t lose their current protection from deportation. They can continue to attend school and work lawfully, and they can keep contributing to their communities and local economies.

The DACA initiative didn’t provide a permanent legal status, only a temporary reprieve from deportation that can be renewed every two years, along with the ability to obtain a Social Security Number and an employment authorization document. Nevertheless, this stopgap measure that DACA represents, which keeps immigrants from being deported to a country they can barely remember, has resulted in significant economic and educational achievements for DACA recipients. Being able to work lawfully and without the specter of deportation looming over them means DACA recipients are able to have basic labor rights, which in turn have translated into wage gains. How big are the wage gains? According to a study and survey conducted by Professor Tom Wong and United We Dream, the National Immigration Law Center, and the Center for American Progress, the hourly wages earned by DACA recipients increased 86% since they received DACA, from $10.46 per hour to $19.45 per hour. The wage gains were even higher for DACA recipients who are 25 and older—128%—from $10.64 per hour to $23.70. Wage gains of this magnitude can literally be the difference between being in poverty and entering the middle class.

By this measure alone, DACA has been one of the most successful immigrant integration programs ever, rivaled only by the legalization for unauthorized immigrants that was passed into law as part of the Immigration Reform and Control Act of 1986, by which approximately 2.7 million immigrants were legalized and allowed to adjust to lawful permanent resident status.

Without a doubt, SCOTUS’s decision on DACA is a massive victory for the immigrants’ rights movement and should be celebrated. Nevertheless, the excitement and relief collectively felt by DACA recipients and the rest of the immigrants’ rights community must quickly be tempered by the reality of what lies ahead.

While DACA recipients have “deferred action,” they are not permanent residents or citizens and have no “legal” immigration status. When the Department of Homeland Security (DHS) exercises deferred action with respect to someone who is technically removable (i.e., deportable) from the United States, the agency is not providing that person with a legal status—they are simply authorizing their presence temporarily. In other words, through deferred action, DHS is simply saying to an unauthorized immigrant that they promise not to remove them until further notice, and that they’re at the bottom of the priority list for deportation. Someone with deferred action is still, technically, an unauthorized immigrant.

That’s why it’s important to remember what this SCOTUS decision did not do: It did not rule that DACA is lawful and that the Trump administration may not end it; it simply ruled that DACA was not ended appropriately, and that DHS has to start from scratch if it wants to do it. In fact, it’s clear that the Trump administration has the requisite legal authority to end DACA—it just has to do so properly, according to the requirements laid out in the APA.

Let’s hope this SCOTUS decision isn’t a fleeting victory. The Trump administration could get started today on a new, more legally sound, process to end DACA, although it would likely still take months to accomplish. It is telling however, that Trump didn’t do this already. In fact, the administration could’ve gone back to the drawing board and restarted the ending of DACA in a lawful manner at any point while their rescission of DACA was being litigated at the district or circuit court levels. In doing so, the Trump administration would have had to admit that it erred in its original attempt to end DACA—but it likely would’ve worked if they truly wanted to end DACA.

The fact that the Trump administration didn’t do this suggests that they kept DACA alive for political reasons. One can reasonably speculate that they kept DACA alive in the hopes that they would be able to negotiate a political deal that would extract concessions from members of Congress in exchange for legal status for DACA recipients—either while the litigation was ongoing or soon after SCOTUS ruled in Trump’s favor—which would’ve left DACA recipients vulnerable to removal and provided Trump with leverage over the many legislators who are in favor of protecting DACA recipients. It’s no secret that Trump and his adviser Stephen Miller are searching for a legislative vehicle to implement their immigration policy priorities permanently, which include a vast increase in immigration enforcement, further dismantling the asylum system, and eliminating green cards for extended family and the diversity visa program. Trump hoped to use DACA and the lives of 650,000 immigrants as a bargaining chip; luckily, the Supreme Court threw his administration an unexpected curve ball.

Given his vehement animosity toward immigrants, if Trump wins reelection in November, it is almost certain that DACA won’t exist for much longer. The only way our “DACAmented” brothers and sisters will be free and protected is if Congress acts—and it should do so immediately—by passing legislation that provides an immediate path to citizenship for DACA recipients, as well as for other Dreamers who were brought to the United States as children.

Mandatory arbitration clauses rob workers of their right to take their employer to court for all types of employment-related claims, forcing workers into a process that overwhelmingly favors employers. Class and collective action waivers go one step further, forcing workers to manage this process alone, even though these issues are rarely confined to one single worker.

Workers depend on collective and class actions to enforce many workplace rights. Employment class actions 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 is 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. Class and collective action suits allow workers to pool their claims, making it possible for an attorney to earn enough to make the case worth pursuing.

Today, Senate Democrats joined their colleagues in the House in responding to the Court’s misguided decision with the Restoring Justice for Workers Act. This critical legislation bans mandatory arbitration and class and collective action waivers in labor and employment disputes. The bill is an important first step towards shifting the balance of power between employers and workers.

The legislation is especially important as we seek to change the epidemic of sexual harassment and discrimination that has been exposed by the #metoo and #timesup movements. We must be able to use our collective voice and our collective power to do so. It is only when we act together that we are able to produce meaningful change. We cannot allow the Court to erode our right to collective action. We must join together to demand that Congress pass the Restoring Justice for Workers Act.

Fallout from legislative attacks on state and local government workers

If the Supreme Court rules in favor of the plaintiffs in Janus, the decision will weaken the bargaining power of state and local government workers. Other attempts to weaken the bargaining power of public-sector workers and cut their pay have hurt public servants and the services they provide. These other attempts have often been framed as defending taxpayer interests—taxpayers who are supposedly forced to subsidize allegedly overpaid government workers. In reality, state and local government workers—who, as we later show, are if anything underpaid—provide services on which the vast majority of taxpayers depend. These workers are teachers, social workers, police officers, and firefighters. In fact, in dollars-and-cents terms, efforts to shrink state and local workforces and reduce public-sector workers’ compensation in order to reduce taxes disproportionately benefit the wealthiest households. Wisconsin provides an important example of this impact. Lawmakers there passed $2 billion worth of tax cuts in 2011–2014, paid for by the layoffs and wage and benefit cuts of public employees. Far from benefiting the average taxpayer, fully half of the tax cuts went to the richest 20 percent of the state’s population.3

Further, an examination of Wisconsin’s education system reveals negative outcomes following the passage of a law that virtually eliminated collective bargaining rights for most state and local government workers. Far from improving public services, after the law passed, teacher turnover accelerated and teacher experience shrank; nearly a quarter of the state’s teachers for the 2015–2016 school year had less than five years of experience, up from one in five (19.6 percent) in the 2010–2011 school year.4 These data demonstrate that attacks on state and local government workers are likely to result in reductions in the quality of public services on which most state residents depend. For families who depend on public education, maintaining a stable, experienced education workforce is critical. And it is the stability and experience of state and local government workers—and the quality of services they provide—that is at stake in the Supreme Court’s decision in Janus.

State and local government workers provide critical services

The effects of decimated collective bargaining rights on Wisconsin’s education system should be especially concerning given the sheer number of educators—over 8.8 million—employed in state and local government nationwide and thus potentially affected by Janus. The vast majority (6.9 million) of state and local workers employed in education are in elementary and secondary schools. Table 1 shows the industries that employ state and local government workers. Workers in education make up more than half (51.0 percent) of all state and local government workers, with elementary and secondary school workers alone making up nearly 40 percent (39.9 percent). In addition to education, millions of state and local workers work in justice, public order, and safety activities (primarily police officers and firefighters); hospitals; individual and family services; bus service and other urban transit services; museums and similar institutions; libraries; home health care services; waste management services; child day care services; and on and on. These are the critical public services that are put at risk when attacks on public-sector collective bargaining erode compensation and job quality for these workers.

Table 1

State and local government workers provide important services while being relatively underpaid, not overpaid

As argued earlier, the claim that government workers are overpaid is a legislative ploy used to cut pay and curb bargaining rights. State and local government workers already earn less than similar private-sector workers. In particular, comparing the hourly wages of state and local government workers with those of private-sector workers, after controlling for education, age, gender, race, ethnicity, state, and other factors known to affect pay, we find that workers in state and local government make between 3.7 percent and 8.2 percent less on average than their private-sector counterparts.5 As shown in the next section, weakening public-sector unions will only exacerbate this public-sector “pay penalty.”

State and local government workers—like all workers—do better with collective bargaining rights

State and local government workers who are represented by a union earn substantially more than similar workers who are not. A careful analysis of wage data shows that state and local government workers who are covered by a union contract earn between 10.7 percent and 13.6 percent more in hourly wages than their nonunion counterparts with the same level of education, experience, etc.6 To provide a sense of the scope of this pay boost for union workers—and the corollary pay penalty for nonunion workers—consider a full-time, full-year state and local government worker who is in a union who earns roughly $40,000 a year. A similar state and local government worker who is not in a union would earn between $35,200 and $36,100 on average.7 That $4,000 or $5,000 less per year for the nonunion worker could, for example, be the difference between being able to save for a down payment on a house—or for a child’s college education or a secure retirement—and not.

The benefits of union representation are similar for women and men working in state and local government. Hourly wages of unionized women in state and local government jobs are between 9.7 percent and 12.7 percent higher on average than for nonunionized women in state and local government jobs, while the wages of unionized men in state and local government are between 9.2 percent and 12.1 percent higher on average than wages of nonunionized men in state and local government.

The benefits of union representation for state and local government workers are also very large for workers of color. Within the state and local government workforce, wages for black workers are between 10.4 percent and 12.4 percent higher on average than wages of nonunionized black workers. The wages for Hispanic and Asian workers in state and local government get a particularly large boost from union representation—by between 16.0 percent and 17.9 percent for Hispanic workers and between 16.6 percent and 17.8 percent for Asian workers.

These findings are consistent with other research showing that unionization confers wage benefits on workers in both the public and private sectors.8 In addition to wage benefits, union workers in general are more likely to be covered by employer-provided health insurance, and union employers contribute more to their employees’ health coverage than comparable nonunion employers. Workers in unions are also more likely to have paid sick days and paid vacation and holidays. Finally, union workers have an advantage in retirement security, both because union workers are more likely to have retirement benefits and because, when they do have retirement benefits, the benefits are better than those provided to comparable nonunion workers.9

Conclusion

Given the links between union representation, pay, and job quality summarized in this report, we argue that the Supreme Court’s ruling in Janus will likely have far-reaching implications for the nation’s 17.3 million state and local government workers.10 But this case goes beyond its impact on these workers. Critical public services stand to be affected as well.

The decision may lead to greater instability in state and local workforces, which would result in disruptions in the critical services these workers provide—services on which communities depend. The recent teachers’ strikes in states such as West Virginia and Arizona provide examples of the likely effect of denying workers effective collective bargaining.11 It is likely that other state and local government workers would be forced to resort to similar tactics following a Supreme Court decision in favor of the Janus plaintiffs. This means that more communities may face disruptions in the delivery of child and elder care services, public safety services, and municipal services.

This is what is at the core of Janus—whether a group of wealthy donors and corporations will be allowed to rewrite our nation’s rules to serve their own interests at the expense of the public good.12 The financial backers of this litigation likely do not rely on public services to educate their children, care for aging parents, or provide support for disabled family members. Increasingly, the wealthiest interests in this country are able to bypass the state for fundamental services. As a result, they exist apart from local communities and divorced from a shared interest in many public services. This results in cases such as Janus in which wealthy, corporate interests look for ways to reduce public spending on services that they don’t need to rely on. In Janus, these wealthy corporate interests are not just attacking state and local government unions’ ability to protect good, middle-class jobs in public employment—they are also attacking the crucial services on which most Americans depend.

Endnotes

1. Gordon Lafer, The Legislative Attack on American Wages and Labor Standards, 2011–2012, Economic Policy Institute, October 2013.

2. 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.

3. Gordon Lafer, Attacks on Public-Sector Workers Hurt Working People and Benefit the Wealthy, Economic Policy Institute, April 2017.

4. David Madland and Alex Rowell, Attacks on Public-Sector Unions Harm States: How Act 10 Has Affected Education in Wisconsin, Center for American Progress Action Fund, November 2017.

5. To estimate wage differences, we use ordinary least squares to estimate a wage equation using pooled Current Population Survey Outgoing Rotation Group (CPS-ORG) data from 2013–2017, restricting the sample to wage and salary earners ages 18–64 who are either state/local government workers or private-sector workers. For the base specification, we regress log hourly wages on dummies for being a state/local government worker, level of education, race/ethnicity, foreign-born status, gender, and state of residence, along with age and age-squared. The values given are coefficients on the state/local government worker dummy; the range is the result of the inclusion or exclusion of industry and occupation dummies in the specification. Note that by using hourly wages in the regression, we have accounted for the fact that some workers—for example, teachers—often don’t work all year.

6. To estimate wage differences, we use ordinary least squares to estimate a wage equation using pooled CPS-ORG data from 2013–2017, restricting the sample to wage and salary earners ages 18–64 who are state/local government workers. For the base specification, we regress log hourly wages on dummies for being in a union, level of education, race/ethnicity, foreign-born status, gender, and state of residence, along with age and age squared. The values given are coefficients on the union dummy; the range is the result of the inclusion or exclusion of industry and occupation dummies in the specification. Note that by using hourly wages in the regression, we account for the fact that some workers—for example, teachers—often don’t work all year.

7. This range is calculated as $40,000/1.107 and $40,000/1.136 and rounded to the nearest $100.

8. 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.

9. The benefit comparisons in this paragraph are for all workers; they are not specific to state and local government workers as in the wage discussion. For more information on the benefits of unionization in general, see 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.

10. For data on the size of the affected workforce and other key facts, see Julia Wolfe and John Schmitt, A Profile of Union Workers in State and Local Government: Key Facts about the Sector for Followers of Janus v. AFSCME Council 31, Economic Policy Institute, June 2018.

11. West Virginia prohibits collective bargaining for state and local government workers, as reported in Natalie Delgadillo, “Do Weak Labor Laws Actually Spur More Teacher Strikes?” Governing, April 3, 2018. West Virginia, Oklahoma, Kentucky, and Arizona are so-called “right-to-work” states with weak or no public-sector collective-bargaining laws, which has led educators to “press their demands through mass protest and the disruptions in public services that those entail,” notes Jason Walta in “Teachers Walkout without Bargaining Rights—Why It Matters for Janus,” ACS Blog (American Constitution Society), April 5, 2018.

12. 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.

Last year, EPI commissioned a survey that found that 53.9 percent of nonunion private-sector employers already have mandatory arbitration procedures. Prior to that study, the one major governmental effort to investigate the extent of mandatory arbitration was a 1995 GAO survey. That survey, conducted between April 1994 and April 1995, found that just 7.6 percent of employers had mandatory arbitration agreements. In other words, the use of mandatory arbitration agreements grew by more than 600 percent between 1994 and 2017. Using the growth rates between the two surveys to forecast future expansion suggests that by 2024, more than 80 percent of private sector, non-union establishments will adopt mandatory arbitration with class and collective action waiver of employment disputes, if the Court finds that such agreements are lawful.1 That will leave more than 85 million workers subject to mandatory arbitration agreements with class and collective action waivers. This means that the vast majority of workers will be forced to sign away their right to act with their colleagues to resolve workplace disputes—as well as their right to go to court for these matters. As a result, even if many workers face the same type of issue at work, each individual worker will be forced to hire their own lawyer, and resolve their dispute out of court, behind closed doors, with only their employer and a private arbitrator.

Workers depend on collective and class actions to enforce many workplace rights. Employment class actions 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 is 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. Class and collective action suits allow workers to pool their claims, making it possible for an attorney to earn enough to make the case worth pursuing.

But NLRB v. Murphy Oil USA, Inc., Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris have implications beyond class action suits. If the Court is persuaded by the Trump administration, the decision could prohibit a broad category of workers’ collective action guaranteed to U.S. workers since 1935 with the passage of the National Labor Relations Act. The right of working people to join together—whether through a union or not—to improve their wages and working conditions is at the heart of the NLRA. This right is as important today as it was when the Act was passed.

We are at a critical moment as a country. If we are going to address economic inequality, combat employer practices that perpetuate race and sex discrimination, and change the epidemic of sexual harassment that has been exposed by the #metoo and #timesup movements, we must be able to use our collective voice and our collective power to do so. It is only when we act together, whether as working people demanding fair pay—as the workers did in Murphy Oil—or as citizens speaking out collectively against injustice, that we are able to produce meaningful change. If the Court issues a decision that erodes our right to collective action, we must join together to demand Congress act to protect this right. After all, it was collective action that convinced Congress to pass the NLRA over eighty years ago.

1. The rate of growth of mandatory arbitration between 1994 and 2017 in percent terms was 8.9 percent per year on average, and in percentage point terms it was 2.0 percentage points per year on average. Lacking additional information to about the true growth function, we simply projected the incidence of mandatory arbitration going forward using both rates and took the average of the two. It should be noted that the 2017 survey commissioned by EPI showed that just 30.1 percent of employers who required mandatory arbitration also explicitly included class and collective action waivers in their procedures. It is likely that the lack of explicit class and collective waivers within many mandatory arbitration agreements was due to uncertainty about their legality. If the Court finds that such waivers are lawful, we expect that going forward, mandatory arbitration agreements will be highly unlikely not to include explicit class and collective action waivers.

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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