Abstract
Over the last decade, cities, counties, and states across the United States have enacted higher minimum wages, paid sick leave and family leave, domestic worker protections, wage theft laws, “Ban the Box” removal of questions about conviction history from job applications, and fair scheduling laws. Nevertheless, vulnerable workers still do not trust government to come forward and report labor law violations. The article argues that while increasing the size of the labor inspectorate and engaging in strategic enforcement are necessary, they are not sufficient. It argues that co-enforcement, in which government partners with organizations that have industry expertise and relationships with vulnerable workers, has the potential to manage the shifting and decentralized structures of twenty-first-century production, which were explicitly designed to evade twentieth-century laws and enforcement capabilities. The article aims to contribute to a broader understanding of the role of organizations in enforcement and the circumstances in which their effectiveness can be maximized. It sets forth a set of scope conditions and mechanisms and examines empirical cases of co-enforcement in Austin, Los Angeles, and San Francisco. The main findings are that co-enforcement is most enduring when (1) government agencies and worker organizations recognize each other’s unique capacities, rather than attempt to substitute for one another (2); the effort focuses on a specific industry; and (3) the collaboration receives strong political support. Sustaining the impacts of co-enforcement is found to require greater formalization of the partnership and funding streams.
Keywords
Enforcing the New Labor Standards Policies
The United States is in the midst of a bottom-up labor policy boom. Over the past ten years, twenty-nine states and fifteen cities and counties have adopted minimum wage laws higher than the federal level; five states, twenty-three cities, and one county have enacted paid sick leave laws, six states have passed domestic workers’ bills of rights and 100 cities and counties have “banned the box,” removing questions about conviction history from job applications. Organizing efforts are also underway to tackle unfair scheduling practices and paid family leave. Given the outcome of the 2016 presidential race, progressive action on policy will shift even more to the state and local levels.
Most dramatic has been the rapid growth and success of the “Fight for Fifteen” campaign. Following Seattle and San Francisco, in 2016, California and New York became the first two states to enact a $15 minimum wage, and there are now dozens of efforts underway across the country.
But how will the $15 minimum wage, unimaginable until very recently, and the other innovative state and local policies enacted in recent years, be enforced? If contemporary rates of violation of federal minimum wage, overtime, and health and safety rules are any indication, we should be worried.
In 2009, a pathbreaking survey of workers in New York, Chicago, and Los Angeles found that 26 percent 1 suffered minimum wage violations in the previous week, and over 76 percent of those who had labored more than forty hours in the prior week had not been paid according to overtime rules. 2 Most recently, a 2014 the Economic Policy Institute estimated that 300,000 workers a month, in every state, suffered minimum-wage violations. 3
Health and safety violations are also unacceptably high. An average of ninety workers died on the job every single week—more than eighteen workers a day, in 2014. 4 Foreign-born Latinos were especially vulnerable, with more than fifteen deaths a week on average, or two workers killed every single day of the year. 5 Most workplace injuries are preventable: in 2014 more than 6,000 OSHA citations were issued to businesses failing to provide full protections.
Research studies have established that vulnerable workers in low-wage sectors are not filing complaints anywhere near proportionate to their actual experiences of wage theft and health and safety violations. Enforcement systems premised on the assumption that workers will come forward and make a formal complaint when they have a problem can be expected to fall short. 6
There is a widely held view that the solution has to involve increasing the quantity and quality of investigators. 7 Researchers have found a relationship between the rate of inspections (or the size of inspectorates) and compliance outcomes and argued that more inspection means more deterrence, giving rational firms incentives to comply. 8 The US Wage and Hour Division is responsible for protecting wages and working standards for approximately 135,000,000 workers in more than 7,300,000 firms. The Obama inspectorate fielded 1,032 staff in 2013, the largest increase in many years, and that number rose to 1,112 in 2014. 9 According to OSHA, the combined state and federal work force numbers only 2,200 safety and health inspectors—in short, a totally inadequate ratio of inspectors to workplaces that is unlikely to increase under Trump.
At the state and local levels there is little funding of enforcement for the new labor standards policies. In a survey I have conducted of forty-five states and cities that have enacted policies between 2012 and 2016, 27 percent of the states received no additional funding at all for enforcement; another 13 percent received $50,000 or less. At the city level, more than 50 percent have no funding whatsoever to carry out the new policies; another 22 percent have $50,000 or less. 10
Another approach to the enforcement crisis starts from the premise that it is not only the size of the inspectorate that matters but also the strategies that inspectors use. Heightened imperatives to cut costs and limit liability have contributed to more widespread “fissuring” of employment relationships 11 through subcontracting, franchising, increased use of fixed-term contracts, temporary staffing agencies, and independent contracting arrangements. Subcontractors and franchisees are pushed to cut costs wherever they can, and low-road practices have become normalized across many markets. A firm that wants to maintain higher labor standards in these sectors is placed at a formidable competitive disadvantage.
The Wage and Hour Division (WHD) under David Weil’s leadership in the Obama Department of Labor has tackled the challenges of fissuring and low complaint levels through strategic enforcement initiatives 12 that target investigations in industries where workers are most likely to experience wage theft or health and safety violations but least likely to report such violations. Strategic enforcement takes account of industry-specific structures, dynamics, and regulations with the goal of creating “ripple effects” that will influence the behavior of a number of employers at once. WHD’s strategy also focuses on the higher levels of industry structures where the greatest economic power resides, entire business entities rather than individual workplaces, and holds joint employers liable for violations. 13
In 2015, strategic enforcement by WHD accounted for 46 percent 14 of total investigations. Its ascendance into a position equal to complaint-based enforcement over the course of a few short years is unprecedented in the history of the Fair Labor Standards Act. 15 At the state and local agency levels, it is a different story. An overwhelming majority are continuing to take a complaint-based approach; fully 67 percent of states and 76 percent of cities surveyed said that they were not engaging in strategic enforcement.
The argument of this article is that while increasing the labor inspectorate and engaging in strategic enforcement are necessary, they are not sufficient to address the problems of the twenty-first-century labor market. Vulnerable workers still lack sufficient trust in government to come forward on their own. Multiple studies have shown that the presence of unions, worker centers, and empowered workers at the worksite improves enforcement. 16
What is required is co-enforcement of labor laws with organizations of workers. Up until recently, worker organizations have had a limited presence in both theoretical and policy debates in labor inspection. This article aims to contribute to a broader understanding of their role and the circumstances in which their effectiveness can be maximized.
I will describe emerging models of co-enforcement of labor standards in the United States, in which government targets specific sectors and partners with organizations that have industry expertise and relationships with vulnerable workers. The paper argues that co-enforcement has the potential to manage the shifting and decentralized structures of twenty-first-century production, which were explicitly designed to evade twentieth-century laws and enforcement capabilities. It argues that co-enforcement is also useful where state authority, meaning the state’s regulatory and enforcement power, is high but its capacity is weak. Capacity in this instance should be understood in terms both of the ratio of inspectors to firms and of workers’ willingness to share information with state officials.
Drawing from three empirical cases of co-enforcement, I find that co-enforcement is triggered by civil society organizations and most enduring when (1) government agencies and worker organizations recognize each other’s unique capacities, rather than attempt to substitute for one another with alternative organizational bodies; (2) government regulators and worker organizations both cede some control in order to collaborate; and (3) co-enforcement focuses on a specific industry. Sustaining the impacts of co-enforcement is found to require greater formalization of the partnership and funding streams.
The rest of the article proceeds as follows: the second section sets forth the theory of co-enforcement; the third proposes scope conditions and mechanisms by which co-enforcement can produce outcomes superior to conventional types of enforcement; the following section provides three cases of co-enforcement; and the last section offers a cross-case analysis and conclusion.
Co-enforcement in Theory
Co-enforcement conceptualizes state capacity for enforcement as a process of negotiated interdependence between regulators and societal organizations. 17 Ostrom argued that although public goods and services are most often produced by government, they can be produced also by those who consume the services and that, in many cases, it is difficult to produce a service without the active participation of the client. 18 She defined coproduction as “the process through which inputs used to produce a good or service are contributed by individuals who are not ‘in’ the same organization.” 19
Ostrom stressed incentivizing cooperation on the side of both the government and the citizens, arguing that credible commitments by both parties create the trust needed for each continually to provide inputs and to increase them when the other side does so. Building on Ostrom’s ideas, Joshi and Moore described institutionalized coproduction as “the provision of public services (broadly defined to include regulation) through a regular, long-term relationship between state agencies and organized groups of citizens, where both make substantial resource contributions.” 20
Ostrom, Joshi and Moore, and other scholars studied coproduction mostly in the context of public service delivery in developing countries with weak state authority. But coproduction can also be a useful way of thinking about labor standards enforcement, including in countries where state authority is strong.
Co-enforcement also draws inspiration from republican tripartism, a concept advanced by Ayres and Braithwaite in their work on responsive regulation and further developed by Fine and Gordon. 21 Ayres and Braithwaite propose a regulatory process that involves the full and equal participation of a public interest group in enforcement. Public interest groups play a formal role in enforcement, including full access to information, a seat at the table when firms and agencies negotiate, and standing to sue or prosecute under the regulatory statute. In common with Ostrom and Joshi and Moore, Ayres and Braithwaite note that tripartism will work only where public interest groups have both power and information; thus to play their role effectively they advocate for public funding. 22 Fundamental to these ideas is a political stance on the part of the state that takes a strongly affirmative view of the role of workers’ voice and organization in protecting labor market conditions.
Co-enforcement also addresses the fragmentation endemic to the US system and contributes to more coordination among government agencies, bringing the United States a little bit closer to the ideal of unitary enforcement, where the entire labor code is administered by a single agency and can be enforced by a single inspector. 23 In the United States, wage and hour, equal opportunity, and occupational health and safety laws are administered and enforced by different agencies at the federal level, and there has been little ongoing coordination among them. States and now some local governments also administer labor regulations, and there has been little sustained coordination between levels of government.
Finally, ideas about the critical relational and process dimensions of co-enforcement draw on collaborative governance (CG). 24 More than coproduction, tripartism, or unitary enforcement, CG focuses on the actual processes through which public agencies work with nonstate stakeholders to make or implement public policy or manage public programs and assets. It emphasizes decision-making processes that are formal, consensus-oriented, and deliberative. In contradistinction to tripartism, where one public interest group is selected to play a role, CG includes a broader range of stakeholders. 25
Scope Conditions and Mechanisms of Co-enforcement
Scope Conditions
Supportive Government
The crisis of enforcement cannot be solved from a solely technical angle, but must be understood as a political problem that requires organizing, power and a policy solution. Just as higher minimum wage, wage theft and paid sick time laws required a majority in a city council or legislature to enact them and the approval of a mayor or governor, co-enforcement also requires political and administrative support. The cases I will describe all took place in “blue” locales, involving Democratic legislative majorities, mayors, or governors, or a Democratic administration in Washington. However, the presence of Democratic elected officials is not a guarantee of support for co-enforcement.
Organizations with strategic capacity 26 and a threshold level of resources
Co-enforcement partnerships are impossible without the presence of capable organizations to develop the vision, organize to realize it, engage in power analysis and strategy development, and coordinate with government in the day-to-day work. Not all communities have organizations that are engaging with low-wage workers and not all community organizations have the capacity to engage in this way, but there are already hundreds of community-based worker centers 27 for whom tackling wage theft and threats to safety and health has been the central focus, as well as nonprofit legal clinics and health and safety organizations that have been doing this work well for a long time. Worker centers have been engaged in strategies to help low-wage workers recover unpaid wages and compensation for workplace injuries through their own direct actions, mounting of policy campaigns.
Mechanisms 28
Recognizing and leveraging the unique, nonsubstitutable capabilities of state and society
Co-enforcement involves participation in enforcement by workers, worker organizations, and high-road firms and greater transparency between government, workers, and worker organizations. Unpacking the potential contributions of each party in a co-enforcement regime requires more than identifying the additive effects of worker organizations and state regulators. If the impact of each party were only additive, enforcement itself would not be materially changed, just augmented; if regulators are providing the exact same “inputs” as worker organizations, more generous budgets to enforcement agencies could simply substitute for collaboration with worker organizations and increase “outputs.” If that were the case, although coproduction would be helpful, it would not be essential, because these inputs would be largely substitutable. 29 In addition, it would be possible to maintain a theory of enforcement that separated the actions of labor inspectors from those of worker organizations without obscuring key elements of the regulatory process.
However, in the cases presented below, workers, worker organizations, and regulators have capabilities that cannot be perfectly substituted for one another without great cost. 30 In addition, as elaborated below, some of the key attributes of state and society are nonsubstitutable because of relationships of trust and power.
Enforcement begins with workers on the “shop floor.” Workers have unique capabilities to enhance enforcement because they are present at the worksite every day; they have tacit knowledge 31 of the work process and firsthand experience of working conditions and employer practices and how these change over time. They are steeped in the culture of the workplace and have relationships with other workers and supervisors. In the absence of “police patrol” enforcement (in which investigators regularly walk workplace beats), if any actor is poised to engage in the “fire alarm” model of enforcement, it is workers at the workplace. 32
Worker organizations are commonly said to have access to information on labor standards compliance that would be difficult for state officials alone to gather. 33 It is often only when the organization has vouched for a government agency and engaged with workers over time that vulnerable workers are willing to come forward. Building on existing trust between workers and organizations, investigators can gain access to the knowledge and information workers possess about violations.
Through their relationships, networks, and reputational credibility, organizations can encourage workers to file complaints with state and federal agencies; help to gather testimony and documentation about hours worked, deductions taken, and safety conditions; and then help to assemble the information into formal complaints. They can act as a resource about community institutions, neighborhoods, leaders, cultural practices, and languages. Through worker networks, they can identify workers employed in problematic firms and industries and provide a safe space, interpretation, and facilitation, helping inspectors meet with workers who may be too intimidated to go to a government office. They also have power to compel changes in firm behavior that the state does not always have or choose to exercise; organizations exercise moral power 34 when they document and publicize egregious examples and patterns of abuse and can hold specific employers publicly responsible. Fearing reputational repercussions, some businesses respond to those pressures.
Worker organizations can also enhance the power of regulators in responding to and preventing violations. Agencies face a wide range of political pressures not to engage in vigorous enforcement. Worker organizations can play an important role as countervailing powers. Further, after the act of enforcement, the power of regulators is dimmed by the low probability of a repeat enforcement action. When labor inspectors move on to other firms or industries, worker organizations can continue to press employers to comply with regulations.
State regulators of course possess unique capabilities and power, 35 including the power to set standards, incentivize behavior, and compel firms to undertake improvements. State regulators can demand information; investigate workplaces through on-site inspections of facilities and payroll records; and punish through the use of fines, suspensions, denial of licenses, and closing firms down. The state has the ability to identify retaliation against complainants and informants, and to provide protection through heightened monitoring as well as impose punishment. State regulators can also enforce regulations where worker organizations are absent or weak. Finally, by targeting sectors, citing employers and publicizing their enforcement actions, the state also has the unique power of legitimation 36 of the claims of workers and worker organizations to the broader society.
Historically, high-road firms 37 in sectors such as construction and manufacturing, have had the power to establish best practices at their own firms regarding wages, working conditions, benefits, and scheduling; join with like-minded firms to create high-road corridors in their sectors; 38 work together to patrol their labor markets for unfair competition; and use their buying power to require those practices of firms throughout their supply chains. 39 Unfortunately, in many of the sectors in which low-wage workers are concentrated, there do not seem to be enough high-road firms willing to play a decisive role in setting standards in labor markets.
In sum, state regulators, workers, worker organizations, and high-road firms have nonsubstitutable capabilities, but for co-enforcement to succeed, each party must recognize the other’s unique qualities. Agency leaders and investigators in particular must feel comfortable with the partnerships and believe that the full potential for enforcement cannot be achieved without including workers and worker organizations and that doing so does not compromise their role.
Engaging in strategic enforcement: sectoral targeting
When worker organizations focus on a specific sector, they are able to understand how industries and the firms within them function and to get to the root causes of violations—making the organizations powerful sources of expertise for inspectors, who seldom specialize in a specific sector. 40 Utilizing the relationships of trust they develop with workers, worker organizations can help gather information about the strategies and tactics common to the sector that result in labor standards violations. Effective organizations can identify the full scope of a subcontractor’s operations, expanding cases beyond initial complainants by identifying others who have been impacted across supply chains and labor markets.
Routinizing flows of information across the state-society divide
What information must flow across the state-society divide to make enforcement more effective? To begin, regulators need to have access to the kind of granular information that worker organizations can provide. Information sharing was not emphasized by Ostrom or Joshi and Moore, but it was of major import for Ayres and Braithwaite, and it comes up repeatedly in the case studies. Worker organizations that have actively brought workers forward need to know what the regulatory agency is capable of doing and how it functions; they also need to be kept abreast of how cases are proceeding. When organizations facilitate complaints but receive no information on how the case is proceeding, they lose credibility with the workers they have encouraged to step forward. 41 When that happens repeatedly, organizations begin to view filing complaints with the state as a last resort.
Building strong relationships and deliberative processes
In order to take maximal advantage of what worker organizations know about industry-specific subcontracting schemes, regulators need to understand that trust, communication, and accountability are all key components in maintaining relationships with workers and worker organizations. Likewise, worker centers and unions need to have respect, empathy, and compassion for the pressures and constraints under which government investigators operate. Collaboration requires that both state regulators and worker organizations accept each other’s limitations and modulate the demands they make of each other.
Fundamentally, success depends on strong relationships 42 between state agencies and workers, worker organizations, and high-road firms. Trust, adaptation, accountability, and communication are key to these relationships. At the outset, as Ansell and Gash emphasize, it is critical for the parties to recognize the “starting conditions” of the collaboration, including power differentials; to understand what incentives to participation exist or do not exist, and to acknowledge what may have happened in the past that has either created antagonism or paved the way toward cooperation. 43 Ansell and Gash find that except in rare cases, CG has only been possible with leaders who bring stakeholders together, set and maintain clear ground rules, build trust, facilitate dialogue explore mutual gains and work together in a collaborative spirit.
Organizing political support for the collaboration itself
Co-enforcement requires additional support in the United States because it is not seen as the norm; therefore multiple actors must advocate for partnership. Political support for enforcement agencies is crucial: business interests frequently push back against regulation, often attempting to discredit regulators, while unions have long mobilized to defend the programs and budgets of labor standards enforcement agencies.
To identify ways in which coproduction may enhance enforcement, it is necessary to analyze the relationships between state regulators and organizations of civil society. The co-enforcement partnerships described next suggest what it takes to shift the information asymmetries and trust problems that government faces when it acts alone.
Co-enforcement in Practice
Early research by Fine and Gordon 44 and Fine 45 focused on identifying and exploring cases of co-enforcement of labor standards at the state and local levels; thus we selected positive cases on the dependent variable. 46 Six additional case studies, three of which are presented below, were made possible through support from the LIFT Fund in 2014 and 2015, and those were studied with a focus on causal inference. 47 The three cases describe three contemporary examples of co-enforcement at the local, state, and federal levels. The scope conditions and mechanisms are the product of that analytical work, which is also woven into the discussion of the three cases.
The Workers Defense Project and Coproduction in Austin
The Workers Defense Project (WDP) is a membership-based organization whose mission is to empower low-income workers to achieve fair employment through education, direct services, organizing, and strategic partnerships. Founded in Austin in 2002 by employees and volunteers at Casa Marianella, a local shelter, to address the problem of unpaid wages for Austin’s low-wage workers, WDP has grown into a dynamic and innovative organizing force in the city and state.
One in thirteen workers in Texas is employed in the construction industry. The state has the fastest growing housing market in the United States, accounting for more new housing construction permits in the past few years than New York, New Jersey, Pennsylvania, and Illinois combined. 48 But it is also the only state in the union that does not require building contractors to provide workers’ compensation, and it has the highest construction fatality rate in the country, along with very high rates of injury and wage theft. According to a 2013 University of Texas research study, 52 percent of workers surveyed earned poverty-level wages and 22 percent had suffered wage theft. Undocumented construction workers were 2.5 times more likely to experience wage theft and twice as likely to be injured on the job. 49
In the 1980s, business and government partnered to transform the Austin metropolitan area from a modest university town with a dynamic local music scene to a booming urban center of high tech, business, and culture by the late 1990s. 50 The metropolitan area experienced rapid economic and population growth, expanding from just under 600,000 in 1980 to over 2 million in 2015. Many tech giants have national or regional headquarters there, including Dell, Apple, Google, Cisco, eBay, IBM, Intel, Oracle, and Texas Instruments. 51 Growth has been politically contentious in Austin, long known as the conservative state’s “liberal” enclave despite dramatic political and economic disparities. 52 Austin experienced a major surge in demand for commercial and residential construction and is now the fastest growing city in the country. But the building boom has been fueled in part by substandard pay and conditions.
WDP has emerged as the preeminent voice of low-wage Latino workers in Austin; it is focused on confronting problems in the construction sector, which employs large numbers of foreign-born Latino workers. The organization has utilized multiple venues to pursue health and safety and wage theft issues, collaborating with city, state, and federal agencies.
In the summer of 2002 the Austin Police Department (APD) began working in partnership with WDP to investigate certain unpaid wage cases as theft of service crimes. Texas Penal Code § 31.04 (Theft of Service) 53 empowers local law enforcement agencies across the state to investigate wage theft. Similar laws exist in most states and some municipalities. A task force was convened by WDP, the APD, the Mexican Consulate, and others to establish the circumstances in which nonpayment could be reasonably interpreted as “intent not to pay,” so that employers could be arrested for committing criminal theft of service. 54 Charges range from a misdemeanor if the value of services stolen is less than $500 all the way to a first-degree felony if the value of the service stolen is $200,000 or more.
WDP and APD have been working together on the enforcement of theft of services cases for fourteen years. When an “intent not to pay” criterion is satisfied, either WDP or APD calls the employer and attempts to negotiate payment with them. If negotiations are unsuccessful or the employer agrees to pay but does not follow through, WDP sends a certified demand letter notifying the employer that wages are owed, along with a memo from the APD explaining the theft of service law and the department’s commitment to enforcing it. If the employer does not pay within ten days, an arrest warrant is filed with the APD, 55 which can be served either by sending a police unit out or when the employer is pulled over for another reason. Once arrested, the employer appears before a judge who will make a ruling either ordering them to pay or sending them to jail.
WDP selects the venue for workers to pursue their unpaid wages, depending on the specifics of the case. The theft of services statute for example, cannot be applied to workers who are claiming only overtime wages. The organization also would not use the statute for bigger groups of workers filing for large sums of money, because a lawsuit allows for the assessment of double damages as well as attorneys’ fees.
According to representatives at the APD, even when workers go to the police first, they are often referred back to WDP. “I have a large caseload outside theft of service, so WDP has to obtain a lot of the information,” says Chandra Ervin, a detective who spends 20–30 percent of her time investigating theft of service claims.
They do a lot of the footwork that needs to be done and gather a lot of information. They do the demand letter, calculation of money owed and reach out to the suspect and try to mediate. . . they are a big help to me. Basically, they have a done a large bulk of the investigative work.
56
WDP and ADP work together closely on formulating and carrying out strategy. Ervin estimates that ADP is in contact with WDP concerning cases three to four times a week, either by phone or email. ADP lets WDP know when an arrest warrant has been signed by a judge and is “in constant contact” with the organization as the case moves forward. According to Ervin: “It is never the case that they ask me something and I say ‘I can’t tell you that, it’s confidential.’” 57 The partnership has worked so well that the two organizations have continued to deepen their engagement. Most recently, they worked together to draft a routine protocol for APD to ensure that when a potential theft of services call comes in, officers know the right questions to ask to gather the most pertinent information.
WDP’s second partnership was with OSHA to improve health and safety in construction. In July of 2010, the two signed an “Alliance Agreement” that formalized the parties’ commitment to working together. The agreement included participation in OSHA’s rulemaking and enforcement initiatives as well as the development of training and education programs for construction workers on workplace hazards as well as workers’ rights, including the use of the OSHA complaint process and the responsibilities of employers to communicate these rights to their employees. In addition, OSHA and WDP agreed to work together to develop and disseminate information on the recognition and prevention of workplace hazards. OSHA meets with the organization regularly to share information and discuss the progress of cases.
In 2012, the two worked together on a targeted campaign to improve compliance in the construction sector. WDP undertook an extensive survey of residential construction, canvassing worksites and speaking with workers. When hazardous conditions were identified, the organization communicated the information with the OSHA area office, which would then conduct inspections.
With its bilingual staff and volunteers, its worker training capacity, and the trust it had built among workers, WDP had a unique ability to gather information through worksite surveys and home visits and to document health and safety issues. OSHA representatives conducted investigations, issued citations, and imposed penalties. It also put more investigators on the ground, opened an Austin office, and provided a Susan Harwood grant to WDP for training and outreach.
OSHA and WDP worked together on an industry blitz of residential construction worksites. WDP identified workers and collected information that it passed on to OSHA, which then interviewed them and created the documentation necessary to bring complaints. OSHA kept WDP up to date about the progress of cases through frequent communication and copying the organization on letters, which helped WDP keep workers up to date. The two parties also held quarterly meetings to review their partnership.
WDP’s biggest lesson was that OSHA is mandated to investigate every complaint received: thus organizers needed to be judicious about the cases they passed along so that the agency’s limited resources could be focused on the most serious problems. As Patricia Zavala of the WDP put it: “OSHA doesn’t have tons of investigators or resources. . . . It was a learning process for us, okay we found all these violations. . . but we also don’t want to drain OSHA’s resources or ask them to go to sites when there are not really serious violations.” 58 From OSHA’s perspective, willingness to understand the agency’s challenges and adapt is key to alleviating some of the issues and tensions that can arise when organizations and government enforcement agencies work together.
Over the past few years, WDP has succeeded in getting the City of Austin to make economic development incentives contingent on safe and healthy workplaces. Although the state of Texas does not allow municipalities to raise the minimum wage, cities that offer incentives to builders or contract with them on city projects can raise wages and stipulate other conditions as well. In 2012, the Austin city council withheld approval of several large construction projects until companies signed “Better Builders Agreements,” developed by WDP, that specified terms and conditions on the job site and empowered WDP monitors to enforce the agreements through safety walk-throughs.
In 2012, Apple and WDP negotiated an agreement on Apple’s $300 million project in north Austin. The agreement required a minimum wage of $12 an hour and that all workers on site are certified with basic OSHA-10 safety training, provided with all necessary personal protective equipment free of charge, and covered by workers compensation. The general contractor must have an OSHA-30 certified safety representative for the project and subcontractors must be given information about WDP’s OSHA-10 training courses as well as information regarding other local occupational training programs. A WDP representative is allowed to walk the construction site periodically with a representative of the general contractor. Workers are provided contact information for WDP, the general contractor, and Apple representatives to report issues concerning nonpayment of wages.
Trammel Crow Green Water Master Developer, LLC, also signed a Better Builder Agreement, pledging to comply with prevailing wage and OSHA requirements and all applicable state and federal laws relating to construction, and to work with the WDP on enforcement of these standards. The agreement allows a WDP representative with a minimum of thirty hours of OSHA-approved supervisor safety training to accompany representatives of the developer and the general contractor’s safety representative on scheduled monthly safety inspections, to provide reasonable signage giving contact information for WDP and encouraging construction workers to contact WDP about project safety or wage issues, to work with WDP to reasonably investigate and address concerns raised by construction workers regarding safety conditions or wages, and to prohibit contractors from retaliating against construction workers who address workplace concerns with WDP.
In 2013, at WDP’s urging, the city took another step and shifted from working toward individual agreements with contractors to establishing a citywide policy that ties worker protections to Austin’s corporate incentive program. Developers seeking fee waivers or economic incentives, or trying to purchase and build on city land, were required to adopt a living wage floor, and pay a prevailing wage that provided a ladder up from living wage as workers get training and experience; to obtain workers compensation insurance; to hire hard-to-employ workers; and to provide basic safety training. Although the city was charged with monitoring and enforcing the standards, there were no specifics on the enforcement mechanism.
That same year, the Austin city council began to explore an expedited permitting process intended to address developers’ frustrations over backlogs in the city’s development process. WDP campaigned for a voluntary expedited permitting review for small businesses and large commercial and residential projects in exchange for their accepting a higher set of standards. The new process was enacted in September of 2016. Wait times for developers were reduced in exchange for payment of premium fees and guarantees of a livable wage of $13.03 an hour for all workers, provision of basic OSHA training, workers’ compensation insurance for all construction workers, meeting a local goal of hiring from Department of Labor–approved apprenticeship programs, and third party oversight that ensures these standards are followed throughout the contracting chain. The proposal was approved nine to one, over the strong objections of the Greater Austin Chamber of Commerce, Home Builders Association of Greater Austin, and Goodwill Industries. 59 While the organization is continuing to identify policy hooks that facilitate the raising of standards, it is not looking to the City of Austin to hire its own investigators to enforce them. 60
By the summer of 2016, WDP’s Better Builder standards had been implemented on six projects totaling close to $1 billion in development, covering over 10,000 workers. Better Builders has monitors who are former construction workers, and operates its own protocols and training programs. It charges a fee to work with developers, monitor their projects, and offer the Better Builders credential to qualifying companies. WDP and Better Builders had also won a campaign for Travis County to require Better Builder standards and on-site monitoring of the properties it sells or leases to developers and was also working toward their adoption by the Austin Independent School District.
In all three examples, the Austin police department (APD), OSHA, and the City of Austin recognized the unique capabilities of WDP and established protocols for collaboration. The “reverse referral” that went on in the APD case, in which trust was so high that APD was routinely referring workers to WDP, is a strong example of information and resources flowing across the state/society divide. The City of Austin’s use of its zoning power and development incentives in support of WDP’s Better Builders program is what made the Apple and Trammel Crow agreements feasible. The requirement that developers hire third party monitors creates an opportunity for WDP to establish an income stream from its enforcement work. All three examples were initiated by WDP.
The Los Angeles Carwashero Campaign and the California Commission of Labor
The Community Labor Environmental Action Network (CLEAN) is a coalition of worker centers, community groups, service organizations, and unions formed in 2008 to fight for improved wages and working conditions for the estimated 18,000 workers in the $251 million dollar LA county car wash industry—the largest in the United States. Community organizations first began pressing for changes in the car wash industry in the late 1990s, in response to car wash workers’ stories of harsh treatment by employers, illegally low pay, and dangerous working conditions. In 2003 advocates succeeded in getting the California legislature to enact the Car Wash Worker Law, AB 1688, 61 which required owners to register their businesses with the labor commissioner so that the state could prevent employers who had violated labor laws in the past from continuing to operate. “Pirate” car washes lowered standards and went in and out of business frequently. The law was an effort to bring them out of the shadows. It also required owners to post a surety bond of $15,000 against wage and hour claims; contribute to the Car Wash Worker Restitution Fund, which provided a means for workers to collect wages if an employer was unwilling or unable to pay; and imposed liability on the successor to a car wash employer for unpaid wages and penalties owed by a predecessor employer. 62
The bill had a sunset clause that required it to be reauthorized by the legislature every three years. Over the first three years of implementation, total registration in the state grew from 18 percent to about 63 percent. 63 Although investigations, citations, and fines were significantly increased, 64 conditions in car washes remained poor and large numbers continued to operate in violation of labor laws even after being penalized. In March of 2008, the Los Angeles Times reported that fully two-thirds of car washes inspected by the state labor department since 2003 were out of compliance with labor laws and likely to be paying less than half of the minimum wage. 65
The CLEAN campaign was incubated by the UCLA Downtown Labor Center and the national AFL-CIO. “Our vision was to end up with a hybrid of a union and a worker center,” said Jon Hiatt, chief of staff at the AFL-CIO. 66 Along with the AFL-CIO, the United Steelworkers, and the Labor Center, community organizations including the Korean Immigrant Worker Advocates, the Instituto de Educacion Popular del Sur de California, and the Coalition for Humane Immigrant Rights of Los Angeles have all been involved in the campaign, along with the Maintenance Cooperation Trust Fund and the UCLA Occupational Health and Safety Program.
The campaign understood that transforming the industry would require a combination of intensified enforcement and standard setting through public policy that also contained incentives for collective bargaining. “Early on, we decided that whatever else we did, wage and hour was always going to be a major part of what the campaign had to be about,” said Justin McBride, campaign director. 67 In a similar vein, Chloe Osmer, an early CLEAN campaign strategist, focused much of her work on health and safety violations. In her view, it was a means of “building a narrative of the work force and the campaign, painting a picture of the industry and telling the story of what workers’ day to day lives were like,” 68 to the broader public. These experiences frequently included working without protective gear, being exposed to dangerous chemicals, and getting feet crushed or fingers caught in machinery.
Car wash workers had three options for recovering back wages owed to them: filing a wage claim with the Division of Labor Standards Enforcement (DLSE), taking the owner to small claims court, or filing a private lawsuit. Few workers were able to exercise these options until the CLEAN campaign began providing assistance. The DLSE process was lengthy and offered no guarantee of payment even after favorable judgments were received. Although investigators were encouraged to issue citations, collection was a chronic problem. In fact, in 2008 only 53 percent of the total fines assessed on employers in the car wash industry were collected. 69
In the early days of the campaign, the Wage Justice Center and Bet Tzedek Legal Services brought several private wage and hour cases. The organizations identified private law firms to take cases pro bono and recruited law students to do internships at the campaign. Later on, the campaign hired a full-time legal organizer dedicated to building cases, aiding workers in calculating wages and preparing claims, strategizing the appropriate venues for bringing cases, acting as liaisons with different government agencies and legal organizations, and weaving the litigation and enforcement strand into the broader campaign.
The campaign opted to make examples of the largest operators. Two brothers, Benny and Nisan Pirian, the owners of four car wash businesses that exemplified the worst labor practices in the industry, 70 were the first major target of CLEAN’s organizing, litigation, and enforcement strategy. Between 2008 and 2009, a class action suit was brought on behalf of hundreds of current and former workers, and the Pirian businesses also became targets of at least four different government investigations. The opening salvo was a 176-count criminal complaint by the LA city attorney under California’s Business & Professions Code § 17200, which provides injunctive relief for any business practice that is unfair, unlawful, or fraudulent. 71
The complaint against the Pirian brothers charged the businesses with “repeatedly and willfully violating labor laws and creating a work environment that bordered on indentured servitude.” 72 In announcing the complaint at a press conference with the CLEAN campaign, the city attorney’s office made clear that it was part of a larger effort. A press release openly touted the union organizing drive underway as a means of cleaning up the sector: “The AFL-CIO and United Steelworkers are attempting to organize the car wash workers into a labor union, to protect them from the sort of workplace abuses and harassment the City Attorney’s investigation discovered.” 73 The investigation was jointly carried out with investigators from the US Department of Labor who brought separate federal wage and hour complaints. 74
During the same period, unfair labor practice complaints for terminating workers and cutting others’ hours in retaliation for supporting a union drive 75 were filed and eventually upheld by the National Labor Relations Board, and CalOSHA found the Pirians guilty of ten major health and safety violations, including six classified as “serious,” meaning that they could result in death or serious harm. The car wash owners were compelled to hire a health and safety consultant to implement a training program on hazardous materials. In August of 2010, the brothers were sentenced to a year in prison and ordered to pay $1.25 million in unpaid wages to fifty-four workers in the city attorney’s criminal case. The campaign sent letters out to all the car wash owners in Los Angeles describing the jail sentences. Shortly thereafter, in 2011, Bet Tzedek won a million-dollar class action suit against the Pirians on behalf of more than 400 workers for systematic wage and hour violations at their four car washes. 76
As the campaign progressed, CLEAN honed its complaint strategies by prioritizing cases, carefully selecting the appropriate venue for action, and building stronger relationships with agency leaders and investigators. “Educating investigators and agencies about your industry and immigrant workers is part of what we should do when working with enforcement agencies.” 77 The campaign also grew savvier about what the agency needed in order to collaborate and worked to ensure that they provided it. The Asian American Legal Defense Fund, which had been very involved with immigrant worker issues, became an important ally after Governor Brown appointed its former leader, Julie Su, to head the DLSE in 2010. Under the previous administration, the agency had not collaborated with community organizations. According to Victor Narro of the UCLA Downtown Labor Center, “They would say ‘we don’t want to work with the advocates.’” 78
Su met with the campaign early in her tenure, arranged for organizers to make presentations to agency staff, and created access to the field investigators whose main job was to enforce the law. She brought in people who shared her vision, among them Julia Figueroa, who feels that DLSE gains in important ways from collaboration with worker centers: “The organization generally comes to us at a point where they have the trust of a group of workers and through that collaboration those groups of workers gain trust in us.” 79
Under Su and Figueroa, when DLSE wants to identify more workers for a complaint, it is willing to give CLEAN the list of names and addresses of workers to reach out to. Investigators are briefed by the organization before going out to a car wash, so they know whom to ask for when they arrive on site. They do follow-up interviews with workers at the worker center, take CLEAN’s assistance on payroll reconstructions and wage calculations, and keep the organization informed about the progress of cases. The campaign feels that Su is trying to change the culture. As McBride put it: “You can now communicate with them—they don’t shut down and say they can’t talk to you.” 80
In 2010, the attorney general filed a $6.6 million lawsuit against eight of the fifteen car washes owned by the Sikder family, charging that the family businesses had not paid state taxes, unemployment, or disability and had also falsified records. Employees had not been paid minimum wage or overtime, were denied meal and rest breaks, and were often paid late and sometimes issued paychecks that bounced. 81 The suit asked for $1.7 million in lost wages and $4.9 million in penalties and taxes. Faced with a huge settlement, the family agreed to a neutrality agreement, pledging not to interfere with their employees’ right to organize. When thirty workers expressed support for the union, Bonus Car Wash signed a collective bargaining agreement, becoming in 2011 the first unionized car wash in the United States. That was possible because the attorney general’s office made it clear that it would look favorably on unionization and was willing to negotiate the size of the settlement.
CLEAN struggled to repeat that success with other large players. It shifted to a small operator strategy, reasoning smaller businesses would be more vulnerable to pressure. By the close of 2012, despite four years of intensive work, just four car washes were unionized. Nevertheless, workers said that the intensive enforcement and organizing had driven some real improvements. The campaign turned back to the car wash bill, which was up for renewal.
With a Democratic super-majority in both chambers of the legislature and strong support from the California AFL-CIO, the campaign decided to push for a much stronger bill—one that could raise the stakes on car wash owners enough that they would accept a collective bargaining agreement as the better alternative. It got rid of the sunset clause. It raised the surety bond for registration and renewal of registration from $15,000 to $150,000 (CLEAN had been pushing for $500,000). Finally, the law created an exception to the bond requirement for car washes that are party to collective bargaining agreements. 82 Since the bill’s passage, close to forty car washes have become union shops and more than 200 workers became members of the United Steel Workers.
In focus groups conducted in the summer of 2014, carwasheros enthusiastically described the improvements that had come with the aggressive enforcement undertaken by the DLSE, the state attorney general’s office, and the LA district attorney. Many said they had never seen a labor investigator until the campaign began but had had repeat visits over the past four years. “We didn’t know what our rights were,” one worker said, “but now we do.” 83
Beyond the heightened enforcement, many pointed to the transformation that unionization brought to their workplace. “Our salaries went up because of the union,” said one worker. “When we used to tell the boss we needed more hours or more money, he would tell us to go and look for another job somewhere else but things started to change when we organized with the campaign,” said another. 84
Positive changes have not been restricted to unionized car washes. Several of the nonunion carwasheros described significant improvements at their workplaces. One worker said, “they used to pay us cash, now they pay us with checks” and another said that they had stopped paying daily rates and were now paying by the hour. One worker pointed to the fact that managers now have time clocks and the workers themselves punch in every day, whereas before the managers would fill out their timesheets. “Before they never gave us protective equipment like gloves and aprons. We would get injured on the job and they would say ‘too bad’; now they give you something.” 85
The cooperation that has taken place between the CLEAN campaign and various state agencies exemplifies core mechanisms of co-enforcement. The agency has routinized the flow of information across the divide between government and civil society, and both the campaign and the agency have placed a strong priority on developing relationships and providing strong political support for the state commissioner of labor. In 2016, the statewide Wage Theft Coalition, which includes some of the major power players in Sacramento, including the state labor federation, won budget increases and enhanced investigative powers for DLSE. The agency has recently persuaded the Irvine Foundation to provide funds to its co-enforcement partners.
Julie Su believes that working with community-based organizations is one of the best approaches the agency has for finding violations. “They already have the trust of the workers, speak the language of workers, understand how violations occur and are often masked, and are willing to collaborate with us by giving us leads and helping to bridge the trust gap between workers and law enforcement.” 86 Su credits co-enforcement with community organizations for making strategic enforcement possible. Investigators used to conduct randomized sweeps, identifying their targets through the yellow pages and internet searches. They now work with community organizations that, because of their relationships with vulnerable workers in at-risk sectors, know where the violations are occurring and how they are masked.
Su further credits the agency’s partnerships with labor and community organizations for helping it to achieve the highest recorded amount of minimum wages and overtime wages assessed, as well as the highest assessment of civil penalties for minimum wage and overtime violations in a decade. In addition, she acknowledges the importance of partnerships to the agency’s more efficient and targeted use of inspections, which resulted in the highest rate of civil penalty citations in ten years. 87 Although the car wash case was initiated by the CLEAN campaign, Julie Su, who spent seventeen years at a leading legal advocacy organization before becoming commissioner, also took significant initiative and not just in response to pressure from the advocates.
The Community Collaborative and the San Francisco Office of Labor Standards Enforcement
The San Francisco Office of Labor Standards Enforcement (OLSE), created in 2001, is responsible for enforcing the nation’s most expansive set of local labor laws. The agency has the power to conduct investigations, initiate civic actions, involve the city attorney in pursuing criminal cases, conduct joint investigations with the state, and request that city departments suspend or revoke licenses. As of 2016, it had a budget of $4 million and a staff of twenty-two, including eighteen investigators. Its long-time director, Donna Levitt, a former member and leader of the local carpenters’ union, designed many of the agency’s policies and procedures, drawing on her experiences with prevailing wage enforcement and a range of regulatory and administrative best practices to create very strong powers.
In 2006, the San Francisco board of supervisors mandated the establishment of a community-based program to “conduct education and outreach to employees.” 88 OLSE was not involved in the decision to establish or fund the program (called the Collaborative), which grew out of conversations between advocates and members of the board of supervisors and their joint lobbying efforts. Since 2007 the agency has contracted with organizations including the Chinese Progressive Association, the Filipino Community Center, Young Workers United, and the Delores Street Day Laborers Center. Total funding has grown from about $200,000 a year to about $750,000. The organizations in the Collaborative have been instrumental in lobbying for increased funding for both OLSE and the Collaborative.
Worker organizations sign yearly contracts that require them to engage in outreach activities, worker trainings on municipal labor laws, and one-on-one consultation and referral services. Organizations are also expected to provide assistance in filing and screening complaints and to try to bring employees and employers together to solve problems. Organizations are required to abide by certain protocols: membership recruitment, fundraising, and workplace organizing are prohibited, as is collection and use of personal information beyond that needed to meet contractual obligations.
One of the organizations central to the Collaborative and instrumental in its lobbying efforts is the Chinese Progressive Association (CPA), which in 2010, conducted a survey of working conditions in Chinatown and found extensive wage, hour, and benefits violations. 89 To combat them, the organization has a wage clinic funded through the Collaborative that counsels workers on their rights and helps them file claims. In addition, worker leaders conduct outreach to educate workers about wage theft—handing out fliers at bus stops and leading workshops at community fairs and local community colleges.
In late 2009, CPA was instrumental in uncovering a major wage theft case at Dick Lee Pastry.
90
Working together, CPA and OLSE investigators found that for nearly four years, seven Dick Lee employees had not been paid minimum wages or compensated for overtime or double time as required by law, and that the company had falsified payroll records. Workers had been working six days a week in shifts of eleven to fourteen hours, receiving “semimonthly” wages of approximately $550, earning between $3.02 and $3.91 per hour. Dick Lee owners sought to obstruct the investigation and retaliated against workers who cooperated with OLSE by reducing their hours and firing one of them. Charging that these actions constituted unfair and unlawful business practices, the city attorney sued the company for more than $440,000 in wages and interest and eventually recovered $525,000 including penalties.
91
Linshao Chin, OLSE investigator and former CPA staff member, praised the unique capacity to build trust and gain information demonstrated by CPA in this and other cases:
All the initial intake work they do is so critical because it takes a lot to build trust with the workers, to get them to a place where they understand why it is important to collaborate with different government agencies and to even fill out the form or file a claim.
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Chin described another case involving minimum wage violations and payroll falsification, in which CPA, following more than a year building relationships through home visits and one-on-one meetings, persuaded more than ninety workers at Yank Sing restaurant “who previously didn’t trust the government agency and wouldn’t talk to investigators” to file claims. 93 The result of that joint work by CPA, OLSE, and the state was a $4 million settlement; back-of-the-house workers collected between $30,000 and $60,000 each, the largest restaurant minimum wage settlement OLSE had ever been involved in—the largest settlement of any kind for a nonchain restaurant. CPA separately negotiated a “workplace change agreement” that included wage increases for kitchen workers, paid holidays, an increase in paid time off and sick leave, and other improvements. 94
The Filipino Community Center (FCC) is another member of the Collaborative. Filipino immigrant workers are isolated in small care-home facilities where they also reside. FCC was able to tap into social networks and get to know the work force. What they found was a shockingly underregulated industry. Workers were responsible for washing, dressing, medicating, and feeding multiple patients throughout the day. They reported that they were seldom able to get more than a few hours of uninterrupted sleep and that is was impossible to get compensation for all the hours they worked. Recruiters and placement agencies were often part of an oppressive system that put workers in facilities that paid less than minimum wage and illegally deducted housing and food expenses.
With OLSE funding, FCC was able to educate and organize workers, advocate for changes, and file wage claims. 95 Through FCC, OLSE recovered over $1 million in unpaid wages. “FCC has done fabulous work organizing the homecare workers . . . at this point we have done audits and recovered back wages in about ten residential care homes, most of them brought by FCC,” said Levitt. 96
Despite those successes, there have been tensions between some OLSE investigators and some of the worker organizations, particularly over information sharing. Levitt said that while groups often call wanting to know the status of the case, “once they bring us the claimant, and we meet with them, we will be communicating with the claimant rather than the community group.” 97 Levitt said some organizers had told her that their organizations sometimes hesitated to refer cases to OLSE because “they are going to take over the case and I will be kept in the dark.” This sentiment was expressed by other organizations in the Collaborative as well.
In confidential interviews with agency staff, 98 a small number of investigators questioned the entire premise of the Collaborative, arguing that providing money to organizations risked compromising the agency’s neutrality. A few felt that, given their own personal backgrounds, they were just as capable of understanding and developing relationships with workers, did not need an intermediary and worried about the quality of some of the cases that organizations had submitted. Some felt strongly that after a referral had been made to OLSE, it was inappropriate for groups to continue organizing and pressuring the employer.
The organizations were more positive about working with OLSE, but some voiced concerns that investigators were sometimes too quick to dismiss cases brought to them and that the agency did not have written protocols regarding which cases to accept and how investigations would be carried out. Likewise, groups wished that more of the investigators were interested in partnerships, provided more frequent updates about the status of cases, and involved the groups more in settlement conversations with employers. In 2014, the parties agreed on a revised set of contract requirements stipulating, among other things, that each worker organization would resolve or refer to OLSE at least five labor law complaints each quarter. OLSE also appointed staff that are more positive about the collaboration and conciliatory in their approach, as liaisons to the organizations. It is important to note that, subsequent to these interviews, the Agency and Collaborative leaders have reported significant improvements in the relationship.
There had also been some resentment at OLSE about the Collaborative’s willingness to lobby for changes in agency policy unilaterally, by going to the Board of Supervisors. The organizations may have been taking this step in part due to the absence of a collaborative governance process within the partnership. But going around the OLSE is also a consequence of political dynamics in city government. Although established by the Board of Supervisors, OLSE is located within a city agency and the labor standards enforcement officer is appointed by, and serves at the pleasure of, the mayor. Levitt is not allowed to lobby the supervisors directly for more money 99 and is expected to work through the mayor’s office. However, because of concerns about the business climate, there is mayoral ambivalence about the labor mandates. The Collaborative has been instrumental in increasing the agency’s budget, and OLSE acknowledges its important role in mobilizing political support.
Despite strong support for the Collaborative from the supervisors, discord between government investigators and civil society groups posed challenges to deepening and strengthening co-enforcement on the ground. Political support from the supervisors might have been indispensable in establishing the co-enforcement regime, but ongoing internal agency support along with strong facilitation of the collaboration is needed for successful implementation. San Francisco’s labor and employment policy mandates and funding of worker and community organizations to play a role in enforcement are groundbreaking, but have been hindered by the lack of a formalized, ongoing deliberative governance process. Nevertheless, complaints coming through the Collaborative resulted in a significant and steadily rising percentage of total back wages and interest collected. In fiscal year 2010–11, out of a total of $728,329 collected they accounted for 20 % in fiscal year 2012–13, they accounted for 39 percent out of $1,802,003; in fiscal year 2013–14, 56 percent out of $2,488,200; and in fiscal year 2014–15, out of $4,527,758, they were responsible for 85 percent.
Case Comparisons and Conclusion
A comparison of the cases along the five mechanisms of co-enforcement finds the strongest overlap with respect to three of them: recognition of nonsubstitutable capabilities, strategic enforcement, and political support for the collaboration. Without some baseline recognition on the part of government agencies of the unique capacities of workers and worker organizations and vice versa, co-enforcement would not have endured. Likewise, being able to double down on a specific sector—as with car washes in the CLEAN/DLSE case, restaurants and homecare in the Collaborative/OLSE case, and construction in the WDP/APD/OSHA and City of Austin case—made it possible for government and civil society groups to develop an in-depth understanding, pool their knowledge, hone a strategy, and concentrate their efforts for maximal impact.
In all three cases, the partnerships also received strong political support. Austin city councilors were key allies to the Workers Defense Project, demonstrating a strong willingness to pressure developers to accept worksite monitoring. Julie Su had the support of the governor and key legislative leaders for her enforcement approach, and the CLEAN campaign had powerful friends in the legislature as well. The Collaborative had strong support from key officials on the San Francisco board of supervisors, even if the mayor was not as excited about having the highest labor standards and first local enforcement agency in the nation.
These partnerships did not form automatically; they were triggered by the civil society organizations. Ultimately, multiple actors including the organizations, agencies, and elected officials supported them and fought for funding. That political support is crucial, because as regulators and worker organizations collaborate in the process of enforcement, they necessarily cede some control. For instance, accepting cases from worker organizations may reduce regulators’ ability to select and craft cases in ways that comply with formal organizational objectives. Regulators also face the risk of being accused of acting too strongly in the interest of workers. Similarly, worker organizations need to believe it is in their own organizational interest to invest precious time and resources into the enforcement process, which often requires them to reveal their strategies and soften some of their tactics in the interest of the relationship.
These cases demonstrate that co-enforcement can have a significant impact, especially when focused on a specific industry. Sustaining these impacts however, often requires greater formalization of the partnership and funding. When financial resources flow from the state to society, the ability of worker organizations to support enforcement is strengthened. In turn, worker organizations can provide inspectors with material resources; their staff may go out to worksites and homes, interview workers, and help them to fill out complaints or reconstruct payroll records for use by investigators. Those resources can make a tremendous difference for labor inspectorates carrying large caseloads on tight budgets.
Government can generate funds for collaborations by requiring firms in industries with high rates of noncompliance in specific labor markets to contribute to enhanced enforcement, or it can require firms in highly noncompliant sectors to hire labor compliance monitors who could be worker or community organizations. State funding for organizations’ involvement in education and training activities has been controversial in some quarters; the Susan Harwood grants that OSHA awards annually, in particular, have been targeted by some Republicans. 100 But government funding in this area should not be any more controversial than other programs that fund civil society organizations to assist government. These grant programs are governed by formal rules; organizations must apply, they must meet specific selection criteria, and they sign contracts and are required to submit regular progress reports.
It is surprising that only in the case of the Collaborative in San Francisco were financial resources provided directly by government agencies to organizations. In the other two cases, organizations paid for enforcement activities out of existing budgets or received support from foundations or labor unions. In the CLEAN case there is concern about how long the campaign will continue to receive support from the AFL-CIO and the Steel Workers, and in the Austin case, ADP is looking to monitoring as a potential source of income to sustain its enforcement work.
In both Austin and San Francisco, agencies formalized their relationships through memoranda of understanding and contracts. These arrangements created a set of rules and procedures to govern the partnerships. Formal structures to some extent alleviated concerns on the part of state officials that close collaboration with civil society organizations could lead to charges of cronyism or favoritism, although some were still concerned that it compromised administrative neutrality. However, as we saw in the case of San Francisco, even formal structures and funding did not guarantee that government would share information. 101
Most worker center and labor leaders involved in these cases expressed a preference for formalized agreements. Without them, employers would be less likely to recognize their roles; agencies would be less likely to involve the organizations routinely but would proceed ad hoc, case by case. Labor activists also feared that if agencies were not officially committed, they would fall back on entrenched practices. They worried also that without written policies, organizations would serve at the pleasure of individuals; cooperation could be discontinued at any time, and relationships would not be institutionalized for the longer run. Informal cooperation, they also felt, could make it harder for their organizations to alter prevailing power relations in their sectors or to implant a culture of compliance among employers.
Government agencies tended to be uncomfortable with partnerships or formal arrangements involving worker organizations in enforcement. Generally speaking they believed that involving worker organizations in enforcement jeopardized their standing as neutral parties. This mindset of “administrative” or “bureaucratic neutrality” reflects deep-seated notions about the proper role of state agencies in the United States.
In California, however, a very different conceptualization of the role of government in enforcing labor law has emerged, one that moves away from the assumption that government agencies should strike a neutral stance between workers and firms when labor laws are broken, or that partnerships with worker-friendly organizations must be avoided. Su recently articulated this alternative view:
Another premise of government neutrality is the assumption that government is not supposed to take sides. . . . I have said repeatedly that we are not a neutral agency. We are on the side of the law. What does this mean? It means we are on the side of employers who play by the rules; we are on the side of employees whose rights have been violated. We need to always act fairly but if you break the law, you are going to view our enforcement as biased.
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In San Francisco, although organizations are expected to fulfill some performance requirements as a condition of their contracts, neither they nor the agencies have yet devised strategies for evaluating the impact of their interventions on the larger labor market. OLSE felt strongly that it was important to have metrics to evaluate the effectiveness of the Collaborative and that it stood to reason that the number of complaints should increase if the organizations were out in the community. The organizations argue that the number of cases or complaints should not be the sole measures of their impact; they point to the very large settlements they have won in high profile cases such as Yank Sing and the deterrence effect this work has on other local restaurants.
With large numbers of small and marginal employers and small and scattered worksites, these three cases exemplify the structural challenges posed by low-wage industries to efforts to set, maintain, or raise minimum standards. Increasingly, organizations understand that meeting those challenges requires a combination of intensified enforcement, standard setting through public policy, and support for worker organization through collective bargaining or other means.
The crisis of compliance in low-wage industries will not be solved by the state alone. Re-embedding norms of compliance will require creative collaboration between government, workers, organizations, and—where they exist and are willing to participate—high-road firms.
Footnotes
Acknowledgements
I wish to thank the LIFT Fund for a research grant and the Department of Labor Studies and Employment Relations at Rutgers for their support, as well as the following organizations: Asian Law Caucus, Austin Sheriff’s Department, California Commissioner of Labor, Chinese Progressive Association (San Francisco), CLEAN Car Wash Campaign, Coalition of Immokalee Workers, Dolores Street Community Services, Fair Food Standards Council, Filipino Community Center (San Francisco), Korean Immigrant Workers Alliance, La Raza Centro Legal, Maintenance Cooperation Trust Fund, Occupational Safety and Health Administration, San Francisco Department of Public Health, San Francisco Office of Labor Standards Enforcement, UCLA–Labor Occupational Safety and Health Program, Wage and Hour Division of the US Department of Labor, Wage Justice Center, and Workers Defense Project. I also express my deepest thanks to the following individuals: Matt Amengual, Greg Asbed, Linshao Chin, Lola Smallwood Cuevas, Camille DiLeo, Laura Safer Espinoza, Lilia Garcia, Stephanie Gharakhanian, Jennifer Gordon, Ken Jacobs, Donna Leavitt, Shaw San Liu, Justin McBride, Debbie McNeill, Rosemarie Molina, Victor Narro, Steven Pitts, Gerardo Reyes, Joel Rogers, Laine Romero-Alston, JJ Rosenbaum, Gay Seidman, Sean Sellers, Julie Su, Nik Theodore, Cristina Tzintzun, and Erik Olin Wright. I owe a particular debt of gratitude to Fred Block for all of his editorial help and for guiding this article through the process at Politics & Society.
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: Research on the cases discussed in this paper was made possible by a grant from the LIFT Fund in 2014.