Abstract
Low-wage work in the US and many other places continues to be characterized by precarious and dangerous conditions, vulnerable immigrant workforces, and problems of misclassification and wage theft. Several recent initiatives are seeking to demonstrate that conditions can be greatly improved even when governments lack the capacity to broadly enforce the law on the books. In co-enforcement approaches, for instance, municipal governments are enlisting worker and community organizations to improve enforcement of wage and hour laws. Similarly, some private regulatory initiatives are taking ‘worker-driven’ approaches that favor enforcement by locally trusted organizations rather than unreliable ‘checklist auditing’. In this article, we examine one exemplary case of each approach in the US – namely, the Seattle Office of Labor Standards and the Fair Food Program in Florida. Comparing these initiatives reveals a convergence on civil society linkages, locally grounded monitoring capacities, and enforceable penalties. The cases differ in their bases of power and the expected role of the state, though the latter difference is perhaps not as stark as it initially seems. The comparison also suggests some challenges and opportunities for extending these models into new settings.
Introduction
Decades of research has highlighted persistent gaps between the law ‘on the books’ and the law ‘in practice’ (Edelman, 2016). This is especially clear for labor and employment law, where governments have adopted standards for wages, hours, safety, equal opportunity, and union rights without investing in the capacities needed to enforce them (International Labour Office (ILO), 2006). Immigrant workforces have been especially challenging, since the potential for exploitation is high, and workers’ legal status makes them reluctant to report violations (Gleeson, 2010; Gordon, 2005; Galvin 2016). Enforcement bodies have also struggled with complex and ‘fissured’ structures of ownership and control, budget constraints, and the declining political power of organized labor (Weil, 2014). Competitive pressures, marginalized workforces, exceptions in the law, and weak enforcement capacities have combined to make labor and employment law highly uneven in its consequences in affluent countries (Bernhardt et al., 2009; Bobo, 2011) – and often ineffectual in many poor and middle-income countries (Ahmed et al., 2014).
In response, reformers at local, national, and global levels have sought new ways to set and enforce labor standards in low-wage and highly exploitative industries. Labor and social justice organizations have worked to educate employees about their rights and expand channels for complaints (Fine, 2006; Gleeson, 2009). Union organizing campaigns have included demands for increased minimum wages or stronger policing of wage theft (Milkman and Ott, 2014; Milkman et al., 2010; Rolf, 2016). Meanwhile, labor and human rights activists have pushed the private sector to uphold codes of conduct, making reputation-sensitive corporations into enforcers of standards in their supply chains (Bartley, 2018; Estlund, 2010; Locke, 2013; Seidman, 2007). Strategic enforcement efforts in the public sector have similarly tried to make public-facing firms responsible for their contractors (Weil, 2014), while regulators in some countries have embraced a stringent but collaborative mode of enforcement (Piore and Schrank, 2008).
This article compares two approaches to enforcing labor standards in the midst of vulnerable workers and a dearth of direct state enforcement capacities. In one approach, newly established local government agencies are working with community organizations to uncover violations of labor and employment law. In the other approach, ‘worker-driven’ private regulatory initiatives are drawing on community organizations to enforce rules that have been adopted by buyers. We ask how each approach operates and what can be learned from comparing them. Both approaches draw on local civil society to improve information, monitoring, and trust, though their different bases of power subject them to distinct challenges.
Specifically, we examine one initiative of each type. First, the City of Seattle created a local Office of Labor Standards (OLS) in 2014 and began supporting community organizations to conduct outreach to vulnerable immigrant workers and help identify violations. Based on interviews, visits and consultations with key OLS staff and community partners, as well as a range of documents, we describe its design, dilemmas, and accomplishments to date. Second, we examine the Fair Food Program in Florida, its main sponsor, the Coalition of Immokalee Workers (CIW), and its enforcement arm, the Fair Food Standards Council (FFSC). The CIW’s agreements with food retailers and restaurant chains in the US promise a wage premium, decent working conditions, and an intensive enforcement regime. Based on interviews, observations, and consultations with organizers, workers, investigators, growers, and retailers, we describe how this initiative gained power and how it has sought to redefine private codes of conduct – beyond the typical models of corporate social responsibility and multi-stakeholder initiatives.
These two cases are intended to be indicative – though not necessarily representative – of larger emerging turns toward co-enforcement of labor standards and ‘worker-driven’ social responsibility initiatives. To date, research co-enforcement and private regulation have proceeded on separate tracks. Bringing them together helps to clarify the distinctive strengths and weaknesses of each approach, their points of overlap, and some possible paths to combination and cross-fertilization.
Vulnerable workers and labor standards: Problems and new directions
Looking at the bottom 15% of the labor market in three US metropolitan areas, researchers have found that almost 26% of workers failed to receive the legally required minimum wage, 70% did not receive legally required earnings documentation, and 75% of those eligible for overtime did not receive the appropriate payment (Bernhardt et al., 2013: 817–818). The industries most prone to wage theft and unpaid overtime tend also to be heavily populated by immigrant workers (Bobo, 2011; Capps et al., 2007; Waldinger, 1996). Indeed, as of 8 years ago, over half of all Mexican- or Central American-born workers in the US were employed in seven notoriously low-wage, high-violation industries: construction, restaurants, retail, landscaping, agriculture, food manufacturing, and building services (Congressional Budget Office (CBO), 2010: 15). Immigrants also face elevated risks of occupational health and safety problems, including roughly 12 workplace deaths per week among foreign-born Latinos in 2015 (American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), 2017).
Moreover, immigrants enter a domestic labor market characterized by deteriorating protections, de-unionization, and decentralized management structures (Luce et al., 2014; Milkman, 2008; Weil, 2014). Private sector union density in the US is only 6.5% (Bureau of Labor Statistics (BLS), 2018) and lower in many low-wage sectors. Employer intimidation and retaliation are widespread (Bernhardt et al., 2009: 24–25), and immigrants are especially hesitant to voice concerns out of fear of retaliation (Gleeson, 2010; Gordon, 2005; Smith et al., 2009). While inclusive industrial relations regimes in Europe have helped to set a floor for low-wage work there, low-wage workers in the US depend primarily on the enforcement of labor and employment law to ensure safety and rightful compensation (Carre and Tilly, 2017; Gautié and Schmitt, 2010; Mason and Salverda, 2010).
To enforce standards for immigrant workforces, though, governments need to take a number of steps – culturally and linguistically tailoring education and investigation, conducting outreach to employers in ethnic enclaves, allowing third party complaints, protecting anonymity, and otherwise signaling to undocumented workers that it is safe to come forward. Moreover, governments rarely have enough investigators to monitor sites of employment (Bernhardt et al., 2008; Wial, 1999), and the number of labor inspectors relative to the size of the workforce has trended downward in the US since the late 1970s.
More positively, some government agencies have begun to recognize the latent resources of community organizations and worker centers, especially given the difficulty of garnering the trust of vulnerable workers (Fine and Gordon, 2010). These linkages between government and civil society are most apparent at the local level, where reformers in the US have increasingly focused their campaigns for higher minimum wages and stronger standards (Rolf, 2016).
There has also been dramatic growth in private governance, wherein companies agree to promote and enforce labor standards in their supply chains. This is one way to compensate for a dearth of government enforcement, but it has most often led to shallow forms of scrutiny and hollow claims of corporate responsibility, especially in global supply chains (Bartley, 2018; Locke, 2013; Seidman, 2007). As we describe in the following, some initiatives have sought to strengthen enforcement via ‘worker-driven’ definitions of corporate responsibility and private governance. Others have built on local policy changes to generate new co-enforcement initiatives.
Local co-enforcement: Municipal governments and community organizations
Since their emergence in US cities, worker centers have sought to help workers recover unpaid wages – by filing claims with government entities, collecting judgments, and mobilizing pressure on employers. Increasingly, worker centers and unions have turned toward local policy innovation. 1 This is one reason why 15 cities and counties in the US have enacted minimum wage laws higher than the federal level since 2010. Similarly, 23 cities and one county have enacted paid sick leave laws; and 100 cities and counties have enacted ‘ban the box’ policies that remove conviction history questions from job applications. Most visible has been the rapid growth and success of the ‘Fight for Fifteen’ minimum wage campaign (Rhomberg, 2018; Rolf, 2016; Rosenblum, 2017).
With these ordinances has come a demand for new local enforcement agencies, since state and federal labor departments typically do not enforce the higher local standards. Beginning with San Francisco in 2001, local wage enforcement agencies have been established in Tacoma, Seattle, Los Angeles City and County, Pasadena, San Jose, Oakland, Berkeley, Santa Fe, New York City, Minneapolis, Miami, St. Petersburg, Washington DC, Philadelphia, Pinellas County, Florida, and Montgomery County, Maryland, and efforts are underway in many more. At the outset, these local governments have often delegated enforcement to existing agencies, including offices of civil rights, departments of public works, and divisions of consumer and business affairs. Some agencies have spun off the new labor enforcement functions, sometimes establishing departments with minimal staff who have other responsibilities as well, but in other cases, providing agencies with significant budgets, staffing, and authority. There have long been local agencies that enforce prevailing wages on public jobs, but standalone offices of labor standards that cover private as well as public sector jobs are a new phenomenon.
To increase their capacity to reach vulnerable workers, some of these agencies are looking to co-enforcement – that is, formal and sustained partnership with civil society organizations, which are authorized to conduct outreach/education, report violations, and potentially to play a role in the investigation process (Amengual and Fine 2017a; Fine, 2017b; Fine and Gordon, 2010; Fine and Lyon, 2017). The argument for co-enforcement is that information and improvement depend on the tacit knowledge that workers have and on relationships of trust between workers and those charged with enforcing labor and employment law.
Through their relationships and local credibility, community organizations can educate workers, encourage them to file complaints with state and federal agencies, help to gather testimony and documentation, and then help to assemble the information into formal complaints. Drawing on workers’ networks, community organizations can also gather workers from problematic firms and industries, providing a safe space and interpretation and facilitation services, as well as helping state inspectors meet with workers who may be too intimidated to go to a government office. They also exercise a kind of moral power when they document and publicize egregious examples and patterns of abuse (Chun, 2011; Fine, 2006; Jasper, 2008). State agencies face a wide range of political pressures not to engage in vigorous enforcement. Worker organizations can act as countervailing points of pressure and, when investigations do occur, they can continue to monitor employers over time, after inspectors have moved on to new cases.
Co-enforcement seeks to draw in these local actors, who are close to the action and interested in promoting compliance, and asks them to partner with government to augment its capacity. It also includes mechanisms to make community groups accountable to government in the enforcement of existing standards. Across a wide range of issues and settings, scholars have identified ways in which co-enforcement can accomplish more than either government or civil society could do on its own (Anuradha and Moore, 2004; Ayres and Braithwaite, 1992; Bovaird, 2007; Cohen and Rogers, 1992; Moffitt, 2012; Ostrom, 1996; Thomas, 2012). In contrast to government contracting with a third party to take over service provision, co-enforcement complements, rather than replaces, government enforcement.
Private regulation: From checklist auditing to localized, worker-driven social responsibility
A different response to the limits of government enforcement can be seen in the rise of private regulation. Starting in the mid-1990s, American and European apparel and footwear companies began adopting codes of conduct and auditing compliance in their global supply chains, often in response to anti-sweatshop campaigns that ‘named and shamed’ large brands and retailers (Bartley, 2018; O’Rourke, 2003). The subsequent rise of private regulation built on earlier initiatives in the US in which federal and state labor departments turned to private monitors to police garment districts in New York and Los Angeles (Bonacich and Appelbaum, 2000; Esbenshade, 2004), as well as earlier monitoring projects in the global production of toys, sporting goods, and hand-woven rugs (Seidman, 2007).
In private regulatory arrangements, brands and retailers typically ask their suppliers to comply with their own ethical sourcing standards and/or to rules developed by multi-stakeholder initiatives, in which nongovernmental organizations and/or unions have a seat at the table. These private rules have sometimes improved working conditions, but harsh, stressful, and dangerous conditions have often remained the norm, due to intense price pressures, complex subcontracting networks, poor quality auditing, and the continued movement of orders to new locations (Bartley, 2018; Locke, 2013). Most evidence suggests that private codes have rarely affected employment discrimination or freedom of association rights (Barrientos and Smith, 2007; Bartley and Egels-Zanden, 2015). Moreover, many critics worry that auditing weakens respect for labor rights by privatizing government functions, treating labor as an object rather than a participant, and catering to consumerist imagery rather than core industrial relations institutions (Seidman, 2007).
These failures have fueled recent attempts to promote a ‘worker-driven’ model of social responsibility. At its core, this means incorporating workers’ organizations and community organizations into the setting of standards and the monitoring of compliance. Rather than relying on ‘checklist’ auditing done by representatives of a brand or social auditing company, worker-driven models seek to draw on the knowledge and trust of workers and their organizations (Worker-driven Social Responsibility (WSR) Network, 2017). This can be seen in the investigations of university-licensed apparel factories conducted by the Worker Rights Consortium, as well as several initiatives to create participatory health and safety programs in China (Brown, 2009; Students and Scholars Against Corporate Misbehavior (SACOM), 2009).
In addition, worker-driven initiatives seek to reduce the discretion that corporations have in responding to violations. One increasingly prominent approach is to create legally enforceable binding agreements between corporations and worker representatives, wherein companies commit in writing to particular standards and remediation processes (Anner et al., 2013; Donaghey and Reinecke, 2017). Forged in the wake of factory fires and the Rana Plaza collapse in Bangladesh, the Accord on Fire and Building Safety in Bangladesh rests on a written agreement between more than 200 brands and the IndustriALL Global Union, Worker Rights Consortium, and several workers’ organizations within Bangladesh. In Indonesia, the Play Fair campaign’s Freedom of Association Protocol is an agreement signed by several Indonesian trade unions, global footwear brands, and large suppliers (Siegmann et al., 2016).
Recently, advocates have come together to form a Worker-driven Social Responsibility (WSR) Network, which draws together the Worker Rights Consortium, the FFSC, Migrant Justice (a Vermont-based farmworker group), and others. In examining one of these initiatives in the following, we hope to clarify the capacities, limits, and dilemmas of this model, as well as some parallels to co-enforcement of municipal laws.
Comparative case studies: Co-enforcement in Seattle and fair food in Florida
In the following sections, we compare one exemplary case of each of these two approaches – the Seattle OLS and the Fair Food Program in Florida. We do not claim that these cases are representative, but they provide important glimpses into the operation of municipal co-enforcement and worker-driven corporate responsibility initiatives and open up some comparative insights. These initiatives have garnered significant media attention, but there have been few scholarly efforts to dig into their operations. Our research has involved site visits, public reports, and in-person and telephone interviews with a total of 44 informants, some of whom were interviewed multiple times. In Seattle, the interviewees consisted of 4 representatives of advocacy organizations and 16 leaders and staff members of the OLS. In the Fair Food case, the interviewees included 12 leaders and staff of the FFSC, 6 representatives of the CIW, and 6 growers or buyers.
City-level co-enforcement in the US emerged initially in San Francisco, where an OLS Enforcement was created in 2001 to oversee the country’s most expansive set of local employment laws. Seattle established the second local labor standards office in 2014, following the victory of labor, community, and immigrant rights organizations, along with progressives in government, in establishing a US$15 per hour local minimum wage, despite significant business opposition (Rolf, 2016; Rosenblum, 2017). The mayor convened a taskforce of labor, community, business, and government to develop a proposal for an enforcement agency, resulting in the OLS. In addition to the minimum wage, the OLS enforces municipal ordinances on paid sick and safe time, fair chance employment, wage theft, secure scheduling, and hotel employees’ health and safety. It has a range of enforcement tools at its disposal, including funding for co-enforcement with community organizations.
The Fair Food Program and FFSC were founded in 2010–2011 by the CIW, which had been organizing in the small town of Immokalee, Florida since 1992. This is the center of Florida’s enormous tomato industry, which has more than 30,000 workers and 35,000 acres under cultivation, accounting for roughly half of all tomatoes produced in the US market. After struggling for nearly a decade to negotiate with growers, the CIW turned to buyers, pressing Taco Bell – and later McDonalds, Burger King, Whole Foods, Walmart, and others – to agree to pay a penny more per pound of tomatoes and pass this premium directly to workers. They also agreed to a Fair Food Code of Conduct that requires water, toilets, and shade in the fields; farm-based health and safety committees; direct employment by growers rather than labor contracting; compensation for waiting time; and rules against abuse and sexual harassment. Participating farms are subject to regular inspections and financial audits by the FFSC, worker education by the CIW, and additional investigations that can be triggered by worker complaints.
Parallels: Civil society, locally grounded capacities, and enforcement powers
These cases of municipal co-enforcement and worker-driven corporate responsibility share three core features. First, in both cases, civil society organizations are central to the enforcement of standards and ‘baked in’ to the design the initiative in a number of ways. Given vulnerable workers’ distrust of government, community-based organizations are charged with building trust, educating workers about their rights, facilitating complaints, and informing the ensuing investigations.
In Seattle, for example, a dedicated outreach and education fund allows the OLS to contract with nonprofits such as Casa Latina and the Fair Work Center, which collaborates with other community-based organizations, including the Latino Community Fund, Al Noor Islamic Community Center, Somali Community Services, Vietnamese Friendship Association, LGBTQ Allyship, Puget Sound Sage, and the Northwest Immigrant Rights Project. As Jenn Round (2016, personal communication), one of the first OLS investigators, put it: It is obvious to everyone that most people, especially vulnerable workers, don’t want to talk to government. We are calling workers and a lot of times, no one calls us back. It can be really hard to get information. We understand that we are not going to be the trusted messenger for low-wage workers, and we need the trusted messenger. We will access more if we work with organizations.
In the case of the Fair Food Program, the link to civil society rests largely on the CIW, which has a history of organizing in the area, information about what is going on in the fields, and the ability to build trust between workers and auditors. As of March 2018, the CIW had educated 51,958 workers through face-to-face trainings (FFSC, 2018), and since the beginning of the Fair Food Program, workers had made a total of 1800 complaints through the hotline. According to former farmworker Julia De La Cruz, … Workers now have the ability to speak out about problems. Before, no one could say ‘this money was stolen from me or this abuse was happening in the fields’ because they would get fired if they did. But now people have an avenue to point out problems. It is like night and day. (2015, personal communication)
Second, and separate from their ties to civil society, both initiatives have also invested in their own durable, ‘on the ground’ monitoring capacities, tailored to the linguistic needs, cultural expectations, and legal status of the relevant workers. Rather than having investigators drop in – whether from government agencies or private auditing bodies – they treat local knowledge, substantive experience, and ongoing relationships with workers as essential for effective enforcement. Because of their ongoing local presence, these initiatives can respond quickly while leads are fresh, build cumulative stocks of knowledge about industry and employer practices, evaluate the impacts of interventions, and deepen relationships with community organizations, worker representatives, employers, and others.
For example, the FFSC is based in Sarasota, Florida – in reasonable proximity to the tomato fields – and has 10 full-time bilingual investigators, most of whom formerly worked in human rights, economic development, or labor and community organizing. They visit farms twice a year to interview supervisors and workers (100% on small farms and 50% on larger farms). ‘At the core’, one investigator said, ‘it is an issue of making a genuine connection with someone, … talking about something else and then moving into talking about the work environment’ (2014, personal communication). ‘In the fields’, another noted, ‘people are chattier in the morning than after lunch, but we do off-site stuff too, going to housing, riding the buses … . Field stuff is where most of our interviews come from, but it is not the only source’ (FFSC investigator 2, 2014, personal communication). To gather complaints, the FFSC runs a 24-hour hotline with staff who speak Spanish, Haitian Creole, and English, and it requires participating growers to either use this, operate their own, or contract with another hotline provider with similar capacities. Many rely on the FFSC’s hotline, sometimes after first trying call centers that cannot decipher what FFSC investigator Sean Sellers called ‘rambling calls and tomato field jargon’ (quoted in Marquis, 2017: 183). According to the FFSC’s executive director, Laura Safer-Espinoza, At the heart of what makes us different is how absorbed we are in the tomato industry. There is an art to understanding how things feel out there and we have all spent hundreds of hours in tomato fields. We understand how … workers and supervisors interact. It takes months of being out there to be as perceptive as you need to be …
2
(2015, personal communication)
In Seattle, the OLS staff of 22 are mostly lawyers, paralegals, and advocates with prior experience at legal nonprofits and community organizations. Seattle drew heavily upon San Francisco’s immigrant worker-sensitive protocols and administrative procedures and innovated new ones as well. Its intake line is staffed by investigators who are knowledgeable about the relevant ordinances and sensitive to the issues of vulnerable workers. The OLS staff, though, quickly found itself overwhelmed by the large number of complaints. ‘I had a team of investigators who were floundering to figure out how to move simultaneously forty company-wide investigations. The tasks were overwhelming . … They knew that they were not getting to the most vulnerable, pressing cases’ (Taijias, 2017, personal communication). Over time, agency leaders found ways to prioritize cases and refer some to other agencies or small claims court. In 2017, the OLS gained city approval for a framework that prioritizes cases based on egregiousness, number and income of those affected, retaliation, size of the business, and other factors, though a backlog of cases still exists (Bull, 2017, 2018, personal communication; Garfinkle, 2018, personal communication; Orr, 2017, 2018).
Third, beyond identifying violations, both have the power to impose penalties on noncompliant employers. Municipal ordinances in Seattle allow city officials to collect up to three times the amount of unpaid wages, more than three times the amount of front pay for retaliation (with particular attention to threats of reporting the suspected citizenship or immigration status of an employee or family member), and an escalating set of penalties for repeat violations (up to $20,000 per aggrieved party for a third violation). The OLS can also name individuals who may be found liable, such that an employer is personally motivated to pay amounts due. If an employer fails to pay, the OLS can turn to city departments with licensing power, civil actions filed by the City Attorney, collection agencies, and posted public notice of the employer’s failure to comply. 3 In practice, roughly half of cases end with a settlement agreement that collects monetary remedies and sometimes requires other changes to payroll and management practices (Taijias, 2017, personal communication). From its founding to October of 2017, the OLS directly fielded roughly 7000 inquiries from employers and 3000 inquiries from employees, conducted 557 investigations, and recovered monetary remedies for 2202 individuals. The full amount due was collected in 87% of cases with investigations, totaling $1.2 million. The office also conducted 180 follow-up compliance reviews to ensure that problems did not resurface (Seattle OLS, 2017c).
In the case of tomato growers in Florida, enforcement depends on market consequences. Growers who are suspended for violations cannot sell to participating buyers, which comprise an estimated 30% of the market. As noted by Cheryl Queen from the food service company Compass Group USA, Probably like almost every company, we have a code of ethics that we expect our vendors and suppliers to adhere to, but what the Fair Food agreement has that makes it unique is that it is not just saying ‘great you signed this piece of paper, I will trust you that you will take care of it’. (2014, personal communication)
From 2011 to the 2017–2018 season, participating buyers paid nearly $26m in fair food premiums, which were passed directly to farmworkers. A total of 24 growers were placed on probation for failing to provide an action plan or pass remedial audits, and 7 growers were suspended (FFSC, 2018). Yet no grower has been suspended more than once, and the severity of code violations has declined dramatically over time (FFSC, 2018). FFSC staff (2014, personal communication) have argued that their ability to point out major systemic flaws in growers’ operations has helped them establish authority in the industry.
Divergences: Power, politics, and the challenges of persistence
Obviously, there are also crucial differences between a model in which governments use civil society to enforce labor and employment law and one in which private actors seek to enforce codes that have been voluntarily agreed to by retailers and brands. Most notably these initiatives have different bases of authority and enforcement power, and they emerged in quite different political circumstances.
In brief, the rise of local co-enforcement has depended on the political power of unions, worker centers, and progressives in government. In Seattle, the minimum wage law and creation of the OLS depended on Service Employees International Union (SEIU) Local 775 in coalition with Casa Latina and other immigrant rights and faith-based organizations, allies on the City Council, and a supportive mayor. Despite the popularity of minimum wage increases, such powerful coalitions focused on enforcement are not widespread in US cities and counties (Doussard, 2017), and some conservative state governments have passed laws voiding or pre-empting municipal reforms. The Seattle case shows what can result when powerful local reform coalitions are present, although it also illustrates the challenges of institutionalizing this power.
In contrast, worker-led social responsibility in the tomato industry emerged in a labor-repressive environment, and this is one reason that the CIW looked to the market for leverage. The tomato fields of Florida have long been notorious for violence, sexual harassment, unsafe work, wage theft, and in the most extreme cases, human trafficking and indentured servitude. 4 Agriculture is exempted from some of the Fair Labor Standards Act and all of the National Labor Relations Act, and the rules that do apply are poorly enforced. During the 1990s, when conditions were particularly bad on Florida tomato farms, the US Department of Labor had approximately four investigators covering agriculture in the state. By 2010, there were six federal investigators for the entire state – a ratio of one investigator for every 1.2 million workers (Stepick et al., 2013; Woodman, 2016). In 2000, Florida Governor Jeb Bush abolished the state-level Department of Labor and replaced it with a nonprofit corporation to carry out workforce development. (Ironically, when Floridians voted more than 2:1 to enact a higher minimum wage in 2004, there was no state means of enforcing it.) In this context, the CIW turned to campaigns targeting national restaurants and retailers to develop a base of power in the market. Though effective in building support for the Fair Food Program, market power may be more difficult to mobilize in other industries.
These differences generate distinct challenges for the future of co-enforcement and worker-driven social responsibility. The next sections flesh these out by further describing the evolution of each initiative.
Co-enforcement in Seattle: Implementing municipal standards
Seattle followed in the footsteps of San Francisco, where an OLS Enforcement had been created in 2001 and reinvigorated in 2006, when the city began contracting with community-based organizations. 5 Seattle’s OLS was committed to co-enforcement from the beginning, and this has grown over time. As the OLS budget increased from $1.9m in 2016 to $5.3m in 2017, a separate budget allocation for community organizations was raised from $1m to $1.5m and contracts for business outreach were added. Altogether, more than $3m is now going to community partners. In 2017, the city council voted down efforts to fund the OLS through a new regulatory fee on business, choosing instead to establish a dedicated account within its general fund that uses existing revenue from the city’s business and occupation tax to fund the agency.
The OLS has investigated cases involving hotels, restaurants, construction, information technology companies, manufacturers, temporary staffing agencies, and many others (Seattle OLS, 2017a). The agency closes between 8 and 10 cases per month, often with settlement agreements that push employers to correct practices and sometimes to contract with professional payroll providers (Taijias, 2017, personal communication). The OLS has also established and defended strong legal requirements for joint employment and joint and several liability as in its decision to treat franchisees of large corporations as large companies in the implementation of the minimum wage ordinance (OLS, 2017b). This was challenged by employers but upheld by the Ninth Circuit Court of Appeals (International Franchise Association et al. v. City of Seattle et al., 2015).
By working with community organizations, the OLS has sought to reach vulnerable populations and identify violation-prone industries. The Fair Work Center, in turn, estimates that its outreach touched more than 9000 workers (Fair Work Center, 2016). These include a Korean immigrant who was paid less than $5.50 per hour as an assistant to a hairdresser and wrongly categorized as an independent contractor; a Mexican immigrant painter at a large construction firm who was also misclassified and did not receive overtime pay; and a newly arrived refugee from Somalia whose job offer to be a security guard was rescinded after a faulty background check showed false criminal convictions. Casa Latina, the flagship worker center, received a $500,000 contract from the OLS, which made it possible to hire an outreach coordinator, expand to a new area, provide stipends to promotoras for outreach and training, and quadruple the number of wage theft cases it took on in 2015 (Barragan, 2016, personal communication).
While some cities provide small grants for highly specified outreach with extensive reporting, the OLS views the organizations’ roles more holistically and places trust in their strategies. According to Claudia Paras, who oversees OLS community contracts, They have the best strategy and understanding of what the barriers workers in that culture and industry are going to face. They know how to organize, how hard to push, where to look, how long it takes for workers to feel comfortable. We need to really value that and resource it. (2017, personal communication) I pushed for two year contracts to make the work sustainable for the groups, and this process is so much better … I don’t want people to feel they are just feeding the paper. They still have specific scopes of work and I want folks to be thinking ahead, but we also built flexibility into the contracts. Labor standards violations come up in a context in which these workers are dealing with other problems too, like housing and immigration … We are only going to enforce those six labor laws, but they are only a fraction of the life of a worker – they need to be seen in their totality.
Despite overarching goodwill, some tensions have arisen between community organizations and investigators. In some cases, investigators were frustrated by organizations demanding to be present during intake or going over their heads to complain. After pushing back to establish boundaries, though, investigators report that relationships tended to improve.
Seattle’s OLS remains largely complaint-based, which is known to be a limited way to reach vulnerable workers (Weil and Pyles, 2005). Its capacity for strategic enforcement has grown though. In 2016, after it gained the requisite authority, the OLS announced its plan to target specific sectors for directed investigations (Seattle OLS, 2016). ‘We will look at workplaces in those industries where we have an indication that a violation is occurring or is likely to occur. We also believe these investigations will deter potential violators and encourage voluntary compliance’ (Groover, 2017).
The OLS has also become increasingly aware of business struggles. Investigator Margaret Ahls (2017, personal communication) expressed a common sentiment: ‘Yes … even I do think our ordinances are complicated … . We are constantly finding things that can be points of question and are confusing for employees and employers …’ In 2016, the OLS put out bids for business liaisons and made grants to ethnic chambers of commerce to educate employers about their responsibilities. As described by one investigator (Leyrer, 2017, personal communication), We had a restaurant that is in an immigrant community … a heartbreaking case where the owner was not trying to screw everyone over, but because of a different cultural understanding of payment and work did not understand hourly work and that she had to know actual times when her employees came in and when they left … that even if there are no customers, it really still counts as work …
An initial study of Seattle’s increased minimum wage found no evidence of adverse employment effects in the food service industry (Reich et al., 2017), but it remains possible that less location-dependent industries, such as business services, could migrate to outlying suburbs. The vicissitudes of local politics pose a perhaps more serious challenge, especially since the OLS budget and funding for community partners is controlled by the Mayor and City Council.
Some recent events illustrate the challenges of holding the reform coalition together and managing the tension between individual employee rights and collective labor representation. In the fall of 2017, the OLS struggled to resolve a difficult case brought by UNITE-HERE against Skychefs, an airline food caterer, for underpaying its members. Frustrated by a modest settlement agreement, the union was publicly critical of the agency. Bound by a confidentiality agreement, the OLS was not able to discuss the case or explain its reasons. A few months later, in early 2018, the incoming mayor (a Democrat) replaced OLS Director Orr with Martin Garfinkle, a long-time labor lawyer with strong experience in bringing wage and hour class action suits (Sellers 2009).
On the other hand, even if they were dismantled, municipal labor offices would leave a legacy of case law that could help labor advocates in the future. It is less clear whether this sort of spillover could occur in the case of private regulation, as discussed below.
Worker-driven Social Responsibility Florida: The evolution of a distinctive form of private regulation
The tomato fields of Florida have always depended on low-wage seasonal labor – African-Americans until the 1970s, then Caribbean guestworkers, and now Mexicans, Guatemalans, and Haitians (Sellers and Asbed, 2011). United Farm Workers did some organizing in Florida orange groves during the 1970s, but by the early 1980s the union had pulled out of Florida, promising to return at some point after it had solidified its California organization. When the CIW began its work in 1992, it was the first serious farmworker organization in Florida in years. Despite powerful exposés of human trafficking, and repeated strikes, fasts and marches, the CIW struggled to alter the relations of power in the industry. The organization would negotiate with a grower for better conditions and wage increases only to see them taken away the following season (Alliance for Fair Food, 2014; Asbed et al., 2014, 2015, personal communications).
In 1999, the CIW shifted its focus from the growers to the buyers (Reyes, 2014, personal communication). Growers had long been claiming that they did not have the money to pay more because buyers were using their market power to dictate prices. Their argument was reinforced when one of the largest growers, Gargiulo, opened its books to a well-respected community member and former corporate CEO, who found extremely tight margins and business volatility resulting in just two cents per pound in pre-tax cash flow (Marquis, 2017: 80). The CIW’s strategy became to press buyers to pay a penny more per pound of tomatoes, which would be passed on by the growers to the workers.
The CIW’s first major target was Taco Bell. After trying in vain to persuade the company to open a dialogue, the CIW called a nationwide boycott in 2001. Over the next 4 years, farmworkers and CIW leaders visited campus and community groups across the country, organizing protests at Taco Bell restaurants and corporate headquarters. A number of large religious denominations endorsed the boycott and called for Taco Bell to come to the table (Leary, 2005). The CIW also spawned the Student Farmworker Alliance, which organized college students to ‘Boot the Bell’ from campus – leading to 22 restaurants being thrown off campus or refused permission to open. As the campaign intensified, the CIW moved up the supply chain once again, this time to Taco Bell’s parent company, Yum Brands, and finally won an agreement in 2005.
Building on this momentum, the CIW extended the fight to other companies. It won a 2-year campaign focused on McDonald's in 2007, during which the company tried to get growers to set up their own monitoring organization (Asbed, 2014; grower, 2016, personal communication). Burger King also fought the CIW, but then signed on in 2008 after embarrassing revelations of corporate spying, on-line attacks by executives, and damning journalistic accounts. From 2008 to 2014, companies such as Subway, Chipotle Mexican Grill, Whole Foods, Trader Joe’s, and Walmart signed on, as did food service providers Bon Appetit, Compass Group, Aramark, and Sodexo, many without a fight. For some, this was a way to pre-empt a campaign: ‘Disruption to our college and university business … that was a factor in all of this, …’, said one such buyer (2014, personal communication). ‘They were doing good work but also we didn’t want our business disrupted, kids protesting …’ Some companies, most notably Wendy’s, have remained recalcitrant despite campaigns, but others seem to have concluded that the costs of participating were not so prohibitive and could be passed on to consumers.
Even after buyers agreed to pay the penny more per pound, the Florida Tomato Growers Exchange (FTGE), representing about 80% of growers, refused to sign the code of conduct. Instead they threatened any member of the FTGE that allowed a third party to see their payroll system with a $100,000 fine. As a consequence, the money from the pass-through sat in an escrow account until 2010, when the FTGE finally agreed to cooperate after two of its largest growers moved forward with the CIW. These growers came to the table in the aftermath of a slave labor prosecution against the Navarrete family of labor recruiters in 2007–2008, a case that had been uncovered by the CIW. The growers were faced with having huge contracts withdrawn by buyers that were signatories to the Fair Food Agreement.
In addition to the fair food premium – which is now between 1.5 and 4 cents per pound – the Fair Food Code of Conduct goes well beyond federal law on conditions in the field, waiting time, and labor contracting. Previously, workers would report to the buses at 5 a.m., arrive at the farms by around 7 a.m. and could spend another 2 or 3 hours waiting for the dew to dry on the crops – all without compensation. Labor contractors and crew leaders with the power to hire and fire had been the enforcers of a deeply rooted oppressive and violent system, but the code requires that most farmworkers be directly employed by participating growers (Asbed and Sellers 2013). There is also a groundbreaking sexual harassment policy (New York Times editorial board, 28 October 2017) and mandatory worker education – led by the CIW – at the point of hire and twice a season at each farm.
The code of conduct does not, however, guarantee freedom of assembly or the right to organize a union. CIW leaders acknowledged that it would have been more difficult to build the Fair Food Program if these were included, and they felt that a traditional union model would have been impossible in the Immokalee setting. The CIW had previously signed up over five thousand workers on cards, but because agricultural workers are excluded from the National Labor Relations Act, and there is no Florida parallel to the California Agricultural Workers Act, it felt like an empty gesture (Asbed, 2015, personal communication). Although CIW leaders viewed the right to organize as a nonstarter for growers and buyers, they argue that the Fair Food Program helps workers take action both individually and collectively on the farms and in the community to preserve and protect their rights (Asbed, 2014, personal communication; Leary, 2005; Reyes, 2014, 2015; Sellers, 2014, personal communication). Much of the collective action is community- rather than workplace-based. Workers take part in marches, demonstrations, and direct actions on specific corporate targets. But the CIW and FFSC argue that workers do join together at the workplace when they need to for example press a complaint against a manager, and there are also labor/management health and safety committees at some of the farms that workers are participating in.
Trust in the program has been built in part by seeing it in action. As described by the FFSC’s Sean Sellers, After a grower had been dropped from the program, in order to come back in he had to sit … with the workers who had called and made complaints about the supervisory structure … . He … listened for hours and went back and changed the supervisory structure and that abusive crew leader is no longer in the field chain of command … Now when they go to work, they run the field.
Given the Fair Food Program’s conditions of founding and emphasis on market power, it might appear to entirely bypass the state, diverging strongly from co-enforcement models. But there is evidence that the CIW and FFSC have made meaningful connections with US government agencies. The CIW’s Anti-Slavery Campaign worked extensively with the US Department of Justice, which has prosecuted seven farm labor servitude operations involving over 1000 workers since 1997 (Sellers and Asbed, 2011). The CIW’s work also appears to have influenced practices of the FBI and Border Patrol with regard to human trafficking, as well as Equal Employment Opportunity Commission (EEOC) procedures with regard to sexual harassment (Marquis, 2017: 63). The FFSC also met with representatives of the federal Occupational Safety and Health Administration (OSHA), who were reportedly impressed with its heat stress work and proactive inspections (Safer-Espinoza, personal communication).
In addition, the FFSC has worked with the regional office of the US Department of Labor’s Wage and Hour Division. The FFSC asked officials to train its auditors on the relevant federal laws, and in turn the division’s regional agricultural coordinator has publicly lauded the CIW for activating retailers (Safer-Espinoza, 2018, personal communication). ‘The Wage and Hour Division’s (WHD) strategic enforcement initiative parallels this model by establishing collaborative agreements with lead businesses where they take a lead role in establishing consequences such as the loss of a contract’ (Miguel Rios, quoted in CIW, 2015). A discussed memorandum of understanding, which would have had the FFSC refer cases to the DOL and the DOL focus mainly on growers outside the Fair Food Program, did not come to fruition, though.
If the market power of the Fair Food Program were to unravel, its legacies would be limited but not trivial. It has influenced the practices of several government agencies, in addition to helping to build a similar program in the Vermont dairy industry and the WSR Network (Greenhouse, 2015; Migrant Justice, 2017; WSR Network, 2017).
Indeed, although the CIW has been effective in building support, the market power of the Fair Food Program and other worker-driven initiatives should not be taken for granted. As the Fair Food Program expands to other crops – with initial moves into strawberries and peppers already occurring – it is important to consider the particular market structure that underlies the program.
The CIW has leveraged a concentrated part of the market, where a small number of large, reputation-sensitive buyers has a great deal of power. In addition, the supply chain for fresh tomatoes is simple, consisting of growers, buyers (grocery stores and restaurants), and potentially wholesalers – and this industry structure is bolstered by the code’s prohibition on labor sub-contracting. This simplifies the wage premium pass-through system and the traceability of participating buyers’ purchases. In more complex supply chains, such as those for apparel and electronics, private monitoring has been plagued by opaque layers of subcontracting, which complicate oversight and blur lines of responsibility. Moreover, the geographic concentration of tomato growing in Florida – and the importance of Florida to the larger and seasonally shifting market for fresh tomatoes – enables the locally grounded character of enforcement. It would not be impossible to have knowledgeable, trusted investigators and community partners in more geographically dispersed and mobile industries, but it would certainly be more difficult.
Of course, buyers can opt out of the Fair Food Program if they are able to withstand pressure from the CIW and allies. Wendy’s remains a holdout despite a longstanding campaign; and several major grocery store chains, such as Safeway, Kroger, and Publix, have yet to respond to pressure. Moreover, although signatories are required to source their Florida tomatoes from participating growers, their purchases from elsewhere – such as Mexico – are not covered. To date, it appears that the low cost of participation, the desire to maintain an array of sourcing locations for a fresh and seasonal crop, and the threat of negative publicity have kept buyers from shifting away from Florida (anonymous grower, 2016, personal communication; buyer, 2016, personal communication). The CIW recognizes the potential problem and has increasingly highlighted conditions in the Mexican tomato industry, arguing that companies should not be sourcing from countries that are unable to protect workers from severe exploitation.
Conclusion
The persistence of harsh, dangerous, precarious low-wage work in the US has inspired outrage and innovation. Looking at two types of innovation – local co-enforcement and worker-driven social responsibility – we have sought to shed light on the operation of two specific initiatives and sketch several parallels and divergences. What these initiatives share – civil society collaboration, locally grounded monitoring capacities, and meaningful penalties for noncompliance – also help to separate them from many other governmental or private sector initiatives. The Seattle OLS is perhaps most strongly distinguished by its mandated and generous financial support for community organizations and locally tailored investigation strategies. The Fair Food Program in Florida is perhaps most different from mainstream corporate social responsibility and multi-stakeholder initiatives in its emphasis on grounded local knowledge and enforcement and its ability to use binding agreements to enforce significant market-access penalties for noncompliant growers.
The comparison also helps to pinpoint some of the limits of each model, particularly in terms of the potential for expansion. Power rests on local progressive political coalitions in one case and on corporate-targeted market campaigns in the other. Robust co-enforcement and worker-driven social responsibility are not impossible in other settings, but they will certainly be more challenging in cities with weaker progressive coalitions and industries with greater complexity and mobility, respectively.
How, then, can efforts to ‘raise the floor’ for low-wage work spread more broadly? One insight from our research is that the separation between public and private initiatives has not been as absolute as we first assumed. Governments might help worker-driven social responsibility take hold where industry structures are more challenging for activists to navigate. As one example, the city of Austin, Texas has established an expedited permitting process for developers and construction contractors that submit to a set of standards monitored by Better Builders, an offshoot of the Workers Defense Project staffed by former immigrant construction workers. At some points, the US Department of Labor has used ‘hot cargo’ provisions in the Fair Labor Standards Act to embargo products and require companies to engage in private monitoring. This might accomplish more if combined with rigorous, locally grounded monitoring of the sort developed by the FFSC.
Whether public or private, attempts to raise the bar for low-wage workers are more likely to be effective if they can engage in strategic targeting of high violation sectors, leverage the power of buyers or clients, and develop intensive on-the-ground monitoring capacities, penalties that can drive deterrence, and partnerships with organizations that are trusted by vulnerable workers. Our case studies highlight two cases in which these powers and capacities are being assembled. The footholds that co-enforcement and worker-driven social responsibility are able to make more broadly – in both politics and markets – will determine whether these models can truly remake low-wage labor markets and empower vulnerable workforces in the US and beyond.
Footnotes
Acknowledgments
We are grateful to the Seattle Office of Labor Standards, Fair Work Center, Coalition of Immokalee Workers and Fair Food Standards Council for their cooperation with this research.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: We are grateful to the LIFT Fund for support of the research on the CIW and FFSC, and to the Surdna and Ford Foundations for their support of the Seattle research.