Series: The New Labor Law Enforcers
State attorneys general, district attorneys, and localities like cities are increasingly key players in protecting workers’ rights. This new series by Terri Gerstein provides snapshots of enforcement and other actions to protect workers’ rights by these new and emerging labor law enforcers at the state and local level. Gerstein is an EPI senior fellow and director of the state and local enforcement project at the Harvard Labor and Worklife Program, who has chronicled the growing influence of these new enforcers.
Recent cases brought by state and local enforcers address a host of violations: a lack of COVID-19 workplace safety at Amazon; failure to pay freelance workers on time or at all; terminating fast food workers without just cause (now illegal in New York City); misclassifying construction workers as independent contractors instead of as employees; and the consistent lack of justice for victims of wage theft.
Here’s a snapshot of some enforcement actions across the country at the end of 2021:
San Francisco Office of Labor Standards and Enforcement reached a $5.3 million settlement with DoorDash. On November 22, the San Francisco City Attorney, San Francisco Office of Labor Standards and Enforcement (OLSE), and a City Supervisor announced a $5.3 million settlement with DoorDash.
“We are living through an era of deep inequality, and nothing could be more important than ensuring workers are paid fairly and their benefits are safeguarded,” said San Francisco City Attorney David Chiu. The resolution is the largest settlement in OLSE’s history.
The New York Attorney General (AG) sought a court order appointing a monitor to ensure COVID-19 workplace safety at a Staten Island Amazon warehouse. On November 30, the New York AG’s office filed a motion for a preliminary injunction against Amazon, seeking a court order appointing a monitor to oversee implementation of key COVID-19 safety and health measures in the Staten Island warehouse. The motion was “in response to Amazon’s rollback of its already inadequate public health measures, even as a new variant threatens to cause higher rates of transmission, illness, and death.”
The health measures sought include requiring Amazon to permit time for cleaning, hygiene, and social distancing, and communicate this to employees; requiring Amazon to adopt policies for adequate cleaning and disinfection after infected workers have been present in the facility; and requiring Amazon to institute proper COVID-19 contact tracing protocols, including identifying and notifying close contacts.
“Amazon and its leadership banked billions of dollars during the COVID-19 pandemic, and as the crisis rages on, the health and concerns of the workers continue to be ignored,” said New York Attorney General Tish James. “Amazon must guarantee a work environment that promotes safety, transparency, and respect for its hardworking employees, not one that further endangers them.”
The New York City Department of Consumer and Worker Protection enforced new laws protecting workers, filing a lawsuit under the Freelance Isn’t Free Act and settling a case under the new just cause termination law protecting fast food workers. On December 1, the New York City Law Department and Department of Consumer and Worker Protection (DCWP) announced a lawsuit under the Freelance isn’t Free Act against a French global fashion media company L ’Officiel, based on a pattern of failing to pay freelance workers on time or at all, including writers, editors, photographers, videographers, graphic designers, and illustrators. Since 2017, DCWP has received more than 20 complaints from freelancers about L’Officiel. NYC’s Freelance Isn’t Free Act is the first law of its kind in the country; it gives freelance workers the legal right to written contracts, timely payment, and freedom from retaliation.
On December 14, the New York City DCWP announced the resolution of its first investigation of a termination in violation of a new city law protecting fast food workers from being fired without just cause or for a bona fide economic reason.
The Brooklyn District Attorney’s (DA) office and Virginia AG’s office both obtained guilty pleas in criminal prosecutions related to workplace issues. On December 7, an engineer charged in a construction workplace fatality criminal case brought by the Brooklyn DA’s office pleaded guilty to both felony and misdemeanor charges related to his role in the matter. Original charges in the case, brought in 2019, were unusual because they included not just the deceased worker’s immediate supervisor (as is often the case), but also a number of individuals including the construction company operator, foreperson, and engineer.
On December 8, the Virginia AG’s office announced the guilty plea to felony embezzlement charges of a drywall contractor that misclassified workers constructing the state’s General Assembly building as independent contractors instead of as employees. It was the first criminal case by the AG’s new Worker Protection Unit.
“Businesses that take advantage of their workers through misclassification, wage theft, or payroll fraud are not only stealing from their hardworking employees, but they are also stealing from the Commonwealth,” said Attorney General Mark Herring.
Multistate coalitions of state AGs supported federal rule proposals by the U.S. Department of Labor (DOL). Multistate coalitions of state AGs submitted comments in relation to two proposed DOL rules. A comment submitted on December 9 supported the proposed rescission of a Trump-era Office of Federal Contract Compliance Programs (OFCCP) rule that created an overly broad expansion of a religious exemption from anti-discrimination laws for federal contractors. And a comment submitted on December 13 supported a proposed DOL rule that would allow fiduciaries of private-sector employee retirement plans, such as 401(k) plans, to consider environmental, social, and governance (ESG) factors when making investment decisions.
City enforcers in Los Angeles and Austin engaged in innovative outreach and partnerships. In December 2021, the Los Angeles County Office of Immigrant Affairs launched a campaign called “Your Home is Someone’s Workplace,” informing domestic workers of their rights and educating domestic worker employers about their obligations. And on November 17, the Travis County DA’s office in Austin, Texas, signed a memorandum of understanding with the U.S. Department of Labor Wage and Hour Division to collaborate in relation to labor enforcement.
“We know that addressing economic stability is critical to promoting public safety in our community. This agreement between our agencies will help our office seek justice for victims of wage theft in Travis County and ensure that employers who engage in criminal conduct are held accountable,” said Travis County District Attorney José P. Garza.