Abstract
What happens when the most vulnerable in our society try to realize their theoretical rights? Shannon Gleeson has written a concise and illuminating book that explains the reality of workplace rights where the rubber meets the road, where an individual worker enlists the state in the enforcement of a specific claim. In Precarious Claims, Gleeson focuses on the most precarious workers in the economy, immigrant workers, mostly making very low wages, often working under a chain of subcontractors and labor brokers, and frequently without the benefit of union representation or a collective bargaining agreement. Gleeson succeeds at, in her own terms, providing an account, from the ground up, of the context of worker precarity that leads to workplace violations, how workers weigh the costs and benefits of pursuing a claim, what resources they draw on to navigate the complex workers’ rights bureaucracies and what impact these acts of legal mobilization ultimately have on their everyday lives.
The United States’ workplace rights regime is a complicated patchwork of laws, notionally enforced by a web of federal, state, and sometimes local agencies. Each category of rights applies to different sets of workers and is administered by a different agency. Navigating the system can be a complicated and confusing process even for those with the highest capacity. Gleeson looks at the workers with the greatest challenges and the most to lose, low-wage immigrant workers (of varying immigration status). Gleeson and her research team surveyed hundreds of California workers, at several locations across Silicon Valley, and were able to conduct follow-up interviews with eighty-nine of their subjects, compiling data from the “during” and “after” stages of their claims. The resulting book thoroughly analyzes the relationship between state bureaucracies; civil society institutions, such as legal non-profits and law clinics (“institutional intermediaries” in Gleeson’s terms); and individual workers. The main research subjects are workers who have chosen to make claims and have sought help, primarily through legal clinics and non-profit support agencies. She examines how and why the workers choose to bring forward their claims, and draws out the vicissitudes of the claims process, the outcome and the aftermath (which often includes dropping the claim before it is resolved).
Without a proactive or comprehensive inspection program, enforcement of workplace rights comes down to a reactive system, embedded across a multi-level, multi-jurisdiction bureaucracy. Gleeson’s analysis is, thus, a layered account of what happens when a worker alleges that an employer has violated his or her rights. While the research data are a large set of interviews and surveys, the detailed stories that permeate the monograph make these claims real and accessible.
Gleeson deftly moves between an overview of the regulatory landscape and the stories of actual workers living under these regulations. Following the introduction, the second chapter recounts the cases of five specific workers who are pursuing claims against their employers. Jordon, an African-American man, was fired for attempting to take sick days. Nick, a waiter in a unionized casino, is in his seventies and was fired for allegedly stealing, shortly after he spoke up about workers’ demands for compliance with current rules and improved benefits and pay. Maritza is a Mexican immigrant working in health care whose injuries rendered her unable to work, yet she is stymied by the workers’ compensation system. Yael is an undocumented landscaper who was unable to recoup stolen wages when his employer filed for bankruptcy. Finally, Gloria is an undocumented grounds maintenance worker also covered by a collective bargaining agreement. She brings a claim for workers’ compensation because of the trauma she suffers from sexual orientation discrimination, as well as assault. Gloria faces the multiple and cumulative precarity of being an undocumented woman and an out lesbian, all weapons that her employers wield against her. Gloria’s words sum up the experience of many of these workers as they navigate a byzantine bureaucracy that ultimately fails them: “If I had to go back, I wouldn’t have spoken up. Wouldn’t have said anything. I spoke up, and this is what happened to me. And I am left with nothing.”
In the third chapter, Gleeson moves to the big picture, explaining the “patchwork” of agencies and regulations governing workers’ rights. She describes enforcement mechanisms as either inspection based or adjudicatory based—think of these as proactive and reactive, respectively. The data here make a compelling case that reactive enforcement mechanisms that rely on workers bringing claims are insufficient. To achieve any remedy when violations occur, workers must have numerous resources (linguistic and monetary, as well as a strong support network and the ability to endure a likely indefinite period of unemployment) and seek out legal support in bringing a claim.
This third chapter explains the fragmented workplace rights regime, and leads in to the fourth chapter, which shows the challenge of navigating this bureaucracy for the most precarious workers—those who need it most. Summarizing some of the challenges, Gleeson comments, “For workers with erratic schedules, multiple jobs, and limited literacy or language proficiency, the mountain of evidence required to file a claim can be difficult to compile.” These obstacles prove insurmountable to many workers before even reaching the point where Gleeson’s research begins. But even for those who are able to commence legal claims, the process is full of challenges that all too often prove insurmountable. Some workers seek remedies for abhorrent employer behavior that they learn from the experts is perfectly legal. Gleeson describes “workers coming to terms with the wide gulf between the unfair treatment they experienced and the actionable definition of a workplace violation under the law.”
The final substantive chapter analyzes what happens after a worker seeks a remedy, whether or not she achieves her desired outcome. Gleeson presents the “aftermath” as a window into the instability that many of these workers experience, even if they do not seek to enforce their theoretical rights. Working in a region with soaring housing costs, layers of workplace subcontracting, and overlapping discrimination based on race, gender, language, sexual orientation, and immigration status, these workers embody precarity. When workers removed themselves from the most exploitative and stressful jobs, some felt “liberated” but also suffered the new stresses of finding gainful employment and maintaining steady housing. Gleeson does not oversimplify these experiences, nor does she attempt to aggregate them. The reality is that the claims-making process and its conclusion are different for different people. “Standing up for one’s rights can be simultaneously frustrating and empowering.”
The conclusion of Precarious Claims reminds us of two fundamental gaps. The first is between laws that are on the books and those that are enforced in practice. The second gap, which can at times seem gaping, is that between our fundamental understanding of fairness and the laws protecting workers. It is a fact of work in the United States that numerous unfair, arbitrary, and abusive acts by employers simply do not violate any law. The conclusion re-emphasizes the process by which precarious workers come to an understanding of their rights, seek agents and brokers to enforce their rights, and pursue or ultimately drop their claims. While it will not surprise well-informed readers that the workers’ rights regime in the United States is woefully failing workers, Gleeson’s key contribution is her rich account of the trouble with claims-driven enforcement. “Labor standards enforcement cannot rely solely on the efforts of precarious workers to hold employers accountable.”
Precarious Claims tells an essentially Californian story, and perhaps even an essentially Bay Area story. The workers’ experiences at the heart of the study exist because of a confluence of essential factors. Across the region, low-wage immigrant workers provide the underpinnings for a booming local economy, from personal-care work to trucking and transportation and beyond. The region has higher union density than much of the country. Crucially, California law provides both worker protections and nominal mechanisms for the enforcement of these protections. As Gleeson sets forth, California has a higher state minimum wage than much of the country (as well as higher minimum wages in some counties and cities), stricter overtime requirements, and several state agencies charged with workplace enforcement. Silicon Valley is also home to numerous law schools, whose clinics provide one avenue for legal claims (although only to a small, select group of workers whose cases have pedagogical use). Indeed, Gleeson refers to the area as “arguably the most fertile region for pro bono labor and employment legal aid in the country” with a relatively well-funded legal aid system in place. In much of the country, these claims could not exist—either the rights, or the mechanisms by which to enforce them. Readers might consider California as a special case rather than a representative one; it is, however, an instructive special case where workers have more rights than in much of the country.
One of the most striking elements of Precarious Claims is the light it shines on the patchwork of legal rights and government entities. Gleeson’s subjects navigate numerous bureaucratic agencies including the state labor commissioner, the National Labor Relations Board, the workers’ compensation board, the EEOC, the California Department of Fair Employment and Housing, and more. Chapter Four, “Navigating Bureaucracies,” illustrates the impossibility of making a claim without expert support. Only with the advice of a legal clinic, a for-profit attorney, or an appropriate non-profit can a worker understand whether the perceived injustice was actually illegal, and which agency or enforcement arena is the appropriate location for the claim. As Gleeson puts it, Workers must come to understand the legal definition of their work arrangement and determine whether they are covered by relevant labor standards. This can be a confusing process for some who may not understand the nuances of employment law . . . Especially for workers in the informal economy, these legal categories can be muddled and leave workers without any recourse.
The system is essentially incomprehensible to those who need it most.
When it comes to workers who are covered by a collective bargaining agreement, these particular data do not allow very strong inferences. Gleeson is very precise in delineating the scope of her evidence. She looks at workers who have already chosen to bring a claim and attempt to enforce their rights. While this allows her to analyze the decision to make a claim, and the experience of making this claim, it does not allow us to draw conclusions about workers who do not pursue remedies through these particular avenues. In particular, we miss any comparison with workers whose disputes may be resolved in the workplace itself. For the most part, this demarcation allows a well-defined focus on the claims process itself. In the case of unionized workers, however, the cases are outliers by definition. The only workers in this sample who have the rights and resolution procedures negotiated in a collective bargaining agreement have fallen through the holes in this net (whether through management misbehavior, poor workplace representation by the union, inaccessibility of the complaint procedure, or some other reason).
About 20 percent of the workers in the “follow up” sample (those whose claims the research team were able to follow over time) were union members, or about nineteen interview subjects. They reported serious gaps in their representation, and Gleeson describes them as “disillusioned with their union.” Gleeson acknowledges that her sample is skewed here: any worker who feels her claim has been successfully adjudicated through union-negotiated procedures, such as the grievance process or arbitration, would not pursue recourse via a non-profit legal services organization. “Many of the workers in my study who sought help from the legal aid clinic were upset with the outcome of their union grievance and/or frustrated by their inability to communicate with their union leadership.” While Gleeson is careful to acknowledge the specifics of her sample and does not draw outsize conclusions, a less than careful reader might assume that union representation does little for these highly vulnerable workers. A useful follow-up study might examine the exigencies of union-negotiated processes for workers making similar claims.
Bureaucracies change as governments change. Gleeson’s research was conducted, and Precarious Claims was published, before the dawn of the Trump era. Immigrants are now even more vulnerable to the very real threat of punishment—including deportation—than they were between 2010 and 2012 when these data were collected. Both legal rights and the bureaucratic agencies for enforcing these rights are under unprecedented attack. It remains to be seen whether the system exposed by Gleeson as frequently failing the workers it nominally protects will be the high-water mark in the enforcement of any workplace rights at all. As some states and cities seek to shore up the rights of their workers, to compensate for the weakening of already minimal federal standards, scholars and legislators would be wise to heed Gleeson’s warnings about the gap between legal rights on paper and in practice.