Summary

Historically wage theft and other crimes against workers have not been prosecuted. Rather, civil enforcement by labor departments, along with private class-action lawsuits, have more commonly been the methods used to enforce crucial workplace protections like the right to be paid wages owed. However, responding to widespread, entrenched, and often egregious violations of workplace laws, an increasing number of district attorneys (DAs) and state attorneys general (AGs) have been bringing criminal prosecutions against law-breaking employers. This development is particularly important in light of limits in worker protection laws, underfunding of labor enforcement agencies that enforce those laws, and employers’ increasing use of forced arbitration clauses—which deprive workers of their right to take their employer to court, all of which have narrowed the options for workers whose rights have been violated.

• State and local prosecutors have been bringing charges in a range of cases:
  • wage theft
  • misclassification (of workers as independent contractors) and payroll fraud
  • failure to pay unemployment insurance taxes
  • workers’ compensation insurance fraud
  • labor trafficking
  • egregious workplace safety and health violation
  • workplace sexual assault
  • witness tampering and retaliation
• Criminal prosecution of violations of workers’ rights is appropriate and helps strengthen worker protection laws by establishing meaningful consequences for lawbreaking employers. Egregious violations of workers’ rights harm workers and communities, make it difficult for honest employers to compete, and deprive public coffers of money needed for critical safety net programs. Prosecutors engaged in workers’ rights issues should continue to build on this work, and more offices should join the effort.
• State legislatures should strengthen statutes protecting workers, and ideally create funding mechanisms for pursuing criminal cases against lawbreakers.
• Worker organizations and advocates should build relationships with DAs and the AG in their states to draw these untapped resources into the effort to protect workers’ rights.

The misclassification of employees as independent contractors has been the focus of recent attention as a result of the implementation of that employment model by ride-share and other gig employers. But the practice long predates the emergence of the gig economy, particularly in the construction industry. This article traces the history of misclassification in construction and the subsequent emergence of a cash-based underground system of compensation, which have lowered standards and been among the major causes of the decline of union density in the industry. In addition, the author examines the regulatory environment at the federal level, which has largely enabled misclassification as well as attempts by state agencies to adopt more aggressive enforcement policies.

Key takeaways

• State attorneys general (AGs) have been playing a key role in enforcing and protecting workers’ rights.
• State AGs have dramatically increased their involvement in this area in recent years; this report documents these activities in detail. Here are just a few examples of the many ways state AGs are protecting workers’ rights:
  • Helping workers attain safer working conditions during the pandemic
  • Recovering stolen wages through civil lawsuits and criminal prosecutions
  • Fighting misclassification of workers as independent contractors instead of employees
  • Cracking down on companies’ use of noncompete and no-poach agreements, which limit job mobility
  • Proposing and supporting legislation to safeguard workers’ rights
• State AG offices engaged in workers’ rights issues should continue to build on the work they’re doing, and more state AGs should join the effort.
• State legislatures should grant explicit authority to state attorneys general to enforce workplace rights laws and should ideally also fund positions for enforcement.
• Worker organizations and advocates should seek to build relationships and work with their state AGs to safeguard workers’ rights in their states.

The Center for Law and Social Policy (CLASP) and the Harvard Law School Labor and Worklife Program have released a new toolkit on strategic communication, a critical component of driving compliance with workplace laws. Communicating about agency enforcement, which is critical to informing the public about their rights and responsibilities, is one of the most effective ways to deter violations. These goals are more important than ever as labor enforcement agencies strive to protect workers during the coronavirus pandemic.

This resource addresses why agencies should use media and other means of strategic communications and offers suggestions on how to do so. In a moment of reduced state budgets and limited resources, media coverage and strategic communications are a cost-effective way for agencies to multiply their impact and inform workers of their rights.

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There have been increasing efforts by investors to spur disclosure of companies' workplace-related policies and practices. This paper provides a "case of first impression" assessment of the state of the field of such efforts among U.S. investors. Part I describes attributes of some of the important actors - investors and investor-related organizations - in the field, including their goals, their particular focus on workplace-related issues, and the standards/frameworks/criteria for what should be disclosed relevant to such an analysis. Part II offers a characterization of the success of efforts in the field to date and details challenges posed to making further progress. Part III provides suggestions and ideas about how those challenges might be might.