Building Worker Power in Cities & States:
Structural Reforms and Strategic Enforcement

Background

Effective enforcement of labor standards, such as minimum wage, overtime, paid leave, scheduling, and other basic workplace laws, is critically important for empowering workers. Although effective enforcement alone does not necessarily build worker power, ineffective enforcement and impunity by employers erode it. For example, when workers are not paid the minimum wage to which they are entitled, their lives become more precarious, leaving them with even less capacity to engage in organizing and other power-building activities at work. In addition, the government’s failure to protect even these basic standards undermines workers’ belief in the government agency’s willingness or capacity to protect them in other ways, such as organizing activities. So, adequate funding and staffing of state and local labor standards enforcement agencies can be part of an overall strategy to build worker power.

All states with minimum wage laws except Florida have their own departments of labor, which enforce both federal and state-specific laws. These departments oversee a range of labor and employment-related issues, including wage and hour regulations, paid family leave, workplace safety and health protections, and unemployment assistance programs. However, chronic underfunding has limited these agencies’ capacity to fully enforce worker protection laws. This has resulted in myriad adverse impacts to workers, including the inability of agencies to recover thousands of dollars lost to wage theft every year and to investigate critical risks to workers’ safety and health on the job.¹ Innovative reforms at the state and local levels, however, have introduced new entities, structures, and enforcement mechanisms to the labor standards enforcement arena. These have effectively enabled cities and states to “not only [plug] gaps in enforcement … but [also fight] back against the labor market imbalances that corporations have long been driving in myriad ways that hurt worker bargaining power.”²

Objective of State Intervention: Structural Reforms to Government Agencies

In recent years, state and local governments have established a number of entities specifically dedicated to labor standards enforcement. In some states, offices of state attorneys general have created specialized labor bureaus focused on protecting consumer and worker rights. At the municipal level, localities have created specialized agencies (or subunits within other agencies) equipped to administer and enforce labor standards. Such examples — the specifics of which will be explored in detail below — illustrate how cities and states are reimagining the structure of state and local government entities to meaningfully build capacity for robust labor standards enforcement. 

The creation of dedicated agencies at the state and local level can help channel resources and build critical capacity for advancing, monitoring, and enforcing worker protections. Dedicated staffing and resources enable agencies to build expertise and foster trust through ongoing relationships with local community and worker organizations. Furthermore, formally establishing such units can lend some stability to the availability of resources for enforcing worker protections, shielding them from the whims of changing legislative priorities.³ 

Preemption Risk

The preemption risk for structural reforms is low. While labor bureaus and agencies may be created and legislatively empowered to enforce a range of workers’ rights, efforts to directly impact collective bargaining are likely to be preempted.

Options for State or Local Action

I. Labor Bureaus in Offices of State Attorneys General

In recent years, state attorneys general have played an important strategic role in protecting workers’ rights. Some states — most recently Colorado and Delaware — have passed laws explicitly extending the jurisdiction of state attorneys general to include labor-related matters.⁴ Specific labor-related areas in which state attorneys general offices have acted include wage theft, payroll fraud, worker misclassification, and noncompete agreements.

A growing number of state attorneys general have established dedicated worker protection bureaus with the authority and resources to pursue workers’ rights cases affirmatively — as opposed to solely upon referral by state agencies — in service of the public interest.⁵ Though jurisdictional powers and resources vary by state, these bureaus can carry out a range of functions, such as investigating violations of workplace rights, bringing forward civil and criminal charges, and partnering with other agencies as well as peer attorneys general offices in other states to enforce worker protection laws.⁶ 

Partnerships between state attorneys general labor bureaus, unions, and worker advocacy groups have resulted in effective enforcement outcomes as well as an empowered role for workers’ organizations in facilitating these efforts. Workers’ organizations can help labor bureaus identify issues that are a priority to workers and assist enforcement efforts by boosting outreach, referring cases, and facilitating engagement with workers throughout investigations.⁷ 

For example, in 2023, the Massachusetts’ attorney general office partnered closely on a wage-and-hour case with IUPAT District Council 35, which helped refer cases in an investigation involving a local contractor that resulted in $500,000 recovered in civil penalties.⁸ Workers’ organizations can also play an indispensable role as trusted advocates on behalf of vulnerable workers. In New York, immigrant workers’ advocates from TakeRoot Justice and National Mobilization Against Sweatshops referred a wage theft case involving immigrant home health aide workers to the New York State Office of the Attorney General’s Labor Bureau, which in conjunction with the Office’s Civil Enforcement Section recovered $450,000 in backpay for over 100 workers.⁹

II. Municipal Offices of Labor Standards

Local labor standards offices handle a range of functions related to the implementation and enforcement of local labor laws, including community education programs, intake and referral of worker complaints, investigations, and employer compliance assistance. Some offices, including those in New York City, Boston, Chicago, and Seattle, are empowered to draft and propose labor policy to municipal legislative bodies.¹⁰ These offices typically sit within executive or legislative branches of local government. Denver’s Labor Office is unique in that it is housed under the city’s Auditor’s Office, from which it leverages the office’s tools and capacity to audit payrolls and investigate wage complaints.¹¹ In 2022, the Office of the New York City Comptroller established a new Director of Workers Rights position dedicated to labor standards outreach, enforcement, and advocacy.¹²

In some cases, labor standards offices have helped combat employer interference with workers’ rights amid union organizing campaigns when companies’ tactics violate workplace laws that fall within the offices’ enforcement jurisdiction. For instance, the New York City Department of Consumer and Worker Protection (DCWP) successfully filed a complaint against Starbucks for violating just cause protections under the city’s fair workweek laws. After the company fired a worker who led unionization efforts at a store in Queens, DCWP helped to recover $21,000 in backpay as well as reinstate the fired worker.¹³

Spotlight: Boston’s Cabinet of Worker Empowerment

In 2022, City of Boston Mayor Michelle Wu established the Cabinet of Worker Empowerment. Devoted to “advancing the well-being of all working residents in both the public and private sectors,” the Cabinet is tasked with carrying out the following goals:¹⁴

• Setting the City’s future policy and vision for workers; 
• Regulating, overseeing, and improving workplace conditions and health for workers, and; 
• Expanding economic opportunities for workers through quality jobs, skills training, and career pipelines.

The Cabinet exemplifies how structural reforms can strengthen capacity and facilitate better coordination of resources to enforce worker-empowering policies. For example, the Cabinet has leveraged the City’s procurement, permitting, and licensing processes to drive higher labor standards by promoting prevailing wage laws, safety ordinances, and hiring goals on development projects. Partnerships with other municipal departments have strengthened the capacity to monitor and enforce labor standards as well — in working with the Inspectional Services Department to implement the City’s 2023 Construction Safety Ordinance, the agencies built “much-needed enforcement capacity … [to] now issue violations, stop work, revoke permits, and impose fines up to $300 on permit holders, developers, general contractors/construction managers, and subcontractors found to be in non-compliance.”¹⁵

Objective of State Intervention: Strategic Enforcement Partnerships

State and local labor standards laws that involve workers and their organizations in enforcement can help those organizations build power. Professors Janice Fine and Jennifer Gordon have articulated a vision of “co-enforcement” to describe how unions, worker centers, and other worker organizations could partner with government enforcement agencies.¹⁶ Notably, these partnerships provide several power-building advantages for worker organizations. First, partnering with a government agency can play a legitimizing role for a worker organization, encouraging workers to take the organization more seriously. Second, when they are funded, enforcement partnership models provide support and access to resources that can facilitate organizing. Third, workers who are fearful of reaching out to government agencies might be more likely to assert their rights if they can reach out to a worker organization.¹⁷ 

Read:

Power in Partnership: How Government Agencies and Community Partners are Joining Forces to Fight Wage Theft

by Rachel Deutsch and Terri Gerstein | Economic Policy Institute and CLJE

This last dynamic is especially important for the most vulnerable and precarious workers, who are the least likely to file individual complaints with government agencies but who may benefit the most from power-building strategies. 

We see other potential benefits of strategic enforcement partnerships. When so many people are excluded or disengaged from participation in the political systems and governments that affect their lives, these partnerships provide a concrete method for building community engagement and trust while increasing involvement in government processes and fostering connection to government power. Additionally, involving grassroots worker organizations in the process of enforcement can help develop leadership within low-wage worker communities, including immigrants and people of color. Furthermore, it can enable directly affected workers to participate in key aspects of government enforcement while developing ongoing channels of communication and access for workers to labor agencies and other government agencies and decision-makers. It can also give worker organizations greater leverage and stature when dealing with recalcitrant or exploitative employers.

Moreover, enforcement partnerships can add the critical capacity needed to address the challenge of implementing and enforcing federal investments such as the Inflation Reduction Act (IRA), Infrastructure Investment and Jobs Act, and CHIPS and Science Act at the state and local level. As but one example, the IRA tax credits will likely lead to tens of thousands of distinct energy projects every year across all 50 states. For robust compliance and enforcement of the prevailing wage and apprenticeship requirements for bonus IRA tax credits, it would be beneficial to have strategic enforcement partnerships and mechanisms across multiple levels of government and labor (and labor-adjacent) stakeholders, such as the IRS/Treasury partnering with state DOLs, unions, joint labor-management trust funds, and others. 

The objective of the options described below is to provide a role for unions and other worker organizations in state and local labor standards enforcement regimes. We emphasize those enforcement strategies that are most likely to make enforcement more effective while also building worker power. 

Preemption Risk

The preemption risk for labor standards enforcement partnerships is very low. Community enforcement models have been tested over many years and have not been the subject of preemption challenges. For the most part, these models involve interactions between government agencies and worker organizations. Because they do not involve direct engagements between worker organizations and employers, they do not resemble collective bargaining, thus avoiding the perception that they are impinging on the jurisdiction of the NLRA. Additionally, strategic enforcement partnership models involve minimum labor standards, further reducing the risk of preemption. 

Options for State or Local Action

In this section, we have arranged the options from the least interventionist to the highest. 

I. Policies That Have Been Implemented

• Support for Training and Education Programs
  Provide support to unions and worker organizations for training and education programs focused on workers’ rights to enforcement of labor standards and the process for filing complaints and otherwise engaging with enforcement agencies. This type of program could be modeled on the Occupational Safety and Health Administration’s (OSHA) Susan Harwood Training Grant program, in which OSHA awards grants to organizations “to provide training and education programs for employers and workers on the recognition, avoidance, and prevention of safety and health hazards in their workplaces and to inform workers of their rights and employers of their responsibilities.”¹⁸

• Contracting with Worker Organizations
  Contract with worker organizations to conduct outreach and community education regarding state or municipal labor standards laws and to refer cases to the government.¹⁹ In its most developed form, this program could enlist worker organizations to do more than just conduct outreach; they could serve as a bridge to enforcement agencies. Agencies could also contract with worker organizations to meet regularly to discuss trends in specific industries and make referrals not just on specific workers’ complaints but also on industry bad actors. 
  
  This strategy is modeled on the California Labor Commissioner’s Office (LCO), also known as the Division of Labor Standards Enforcement, which has engaged in a multi-year pilot program, the California Strategic Enforcement Partnership.²⁰ In this pilot, a foundation has funded community-based worker organizations to partner with the LCO in the enforcement of labor and employment laws. 
• Worker Representation During Inspections
  Give workers the right to have representatives from unions or other organizations with them during worksite inspections. This policy could be modeled on the Mine Act regime, which allows two or more workers to identify a representative (either a person or an organization) to accompany a Mine Safety and Health Administration inspector anytime they inspect a mine. Two or more workers can also trigger an investigation into whether a mine should be shut down in the case of serious threats to miners’ health and safety. Recent OSHA rules also formalize workers’ rights to choose a representative to accompany an OSHA compliance officer during an inspection, even if that representative is a non-employee from a union, worker center, or other third-party.²¹ This right could be adapted by state or local labor standards enforcement agencies to apply to wage and hour on-site investigations as well.

• Create Requirements for Developing Plans that Mandate Worker Input
  Recent federal regulations have required worker input into the development of worksite plans that may affect their safety, health, and working conditions in the workplace. OSHA’s emergency temporary standards protecting healthcare workers from COVID required employers to develop a COVID prevention plan, and required worker input in development of that plan and any subsequent changes.²² OSHA’s proposed standards protecting workers from heat and protecting emergency responders, respectively, have similar requirements.²³ Even final regulations from the Department of Health and Human Services require that employers develop a staffing plan, and seek the input of workers and their representatives (broadly defined) in the development of those plans.²⁴

II. Policies That Have Not Yet Been Implemented

Full-Party Status
Give workers and worker organizations full-party status in administrative proceedings.

1. See Ihna Mangundayao, Celine McNicholas & Margaret Poydock, Worker Protection Agencies Need More Funding to Enforce Labor Laws and Protect Workers, Econ. Pol’y Inst. (July 29, 2021), https://www.epi.org/blog/worker-protection-agencies-need-more-funding-to-enforce-labor-laws-and-protect-workers/; Rebecca Rainey, Inadequate Labor Department Resources Stymie Enforcement Efforts, Bloomberg Law (Nov. 7, 2023), https://news.bloomberglaw.com/daily-labor-report/inadequate-labor-department-resources-stymie-enforcement-efforts. ↩︎
2. Terri Gerstein, State and Local Workers’ Rights Innovations: New Players, New Laws, New Methods of Enforcement, 65 St. Louis U. L.J. 45 (2020). ↩︎
3. Gerstein, supra note 85. ↩︎
4. Col. SB 22-161, (2023), https://leg.colorado.gov/sites/default/files/2022a_161_signed.pdf; 
   83 Del. Laws ch. 443 (2022), https://legis.delaware.gov/SessionLaws/Chapter?id=41508. ↩︎
5. Terri Gerstein & Marni von Wilpert, State Attorneys General Can Play Key Roles in Protecting Workers’ Rights, Econ. Pol’y Inst. (May 7, 2018), 
   https://www.epi.org/publication/state-attorneys-general-can-play-key-roles-in-protecting-workers-rights/. ↩︎
6. Gerstein & von Wilpert, supra note 88. ↩︎
7. Jane R. Flanagan, Alt-Enforcers: The Emergence Of State Attorneys General As Workplace Rights Enforcers, 95 Chi. Kent L. Rev. 103 (2020). ↩︎
8. Press Release, Democratic Attorneys General, Painters Union Recognize Effective Partnerships to Fight Wage Theft and Worker Exploitation, IUPAT DC35, (Nov. 15, 2023), https://iupatdc35.org/democratic-attorneys-general-painters-union-recognize-effective-partnerships-to-fight-wage-theft-and-worker-exploitation/. ↩︎
9. Press Release, Attorney General James Secures $450,000 For 100 Home Health Aides Threatened With Deportation, New York Attorney General’s Office (Sept. 13, 2019), ​​https://ag.ny.gov/press-release/2019/attorney-general-james-secures-450000-100-home-health-aides-threatened. ↩︎
10. NYC Consumer and Worker Protection, Office of Labor Policy & Standards for Workers, Worker Rights, https://www.nyc.gov/site/dca/workers/workersrights/office-of-labor-policy-and-standards-for-workers.page; Workforce Development, New Worker Empowerment Cabinet to Advance Rights, Well-being of Workers, City of Boston (Sept. 5, 2022), https://www.boston.gov/news/new-worker-empowerment-cabinet-advance-rights-well-being-workers; Business Affairs and Consumer Protection, Office of Labor Standards, City of Chicago, https://www.chicago.gov/city/en/depts/bacp/supp_info/office-of-labor-standards.html; Office of Labor Standards, City of Seattle, https://www.seattle.gov/laborstandards. ↩︎
11. Denver Auditor’s Office, Denver Labor, City of Denver, https://denvergov.org/Government/Agencies-Departments-Offices/Agencies-Departments-Offices-Directory/Auditors-Office/Denver-Labor. ↩︎
12. Press Release, New York City Comptroller Brad Lander, Comptroller Lander Appoints Claudia Henriquez as Director of Workers Rights (December 16, 2022), https://comptroller.nyc.gov/newsroom/comptroller-lander-appoints-claudia-henriquez-as-director-of-workers-rights2/. ↩︎
13. Janon Fisher, More Starbucks Baristas File Labor Complaints with NYC Worker Agency as Unionization Effort Grows, Daily News (Apr. 12, 2023), https://www.nydailynews.com/2023/04/12/more-starbucks-baristas-file-labor-complaints-with-nyc-worker-agency-as-unionization-effort-grows/. ↩︎
14. City of Boston, New Worker Empowerment Cabinet to Advance Rights, Well-Being of Worker (September 5, 2022), https://www.boston.gov/news/new-worker-empowerment-cabinet-advance-rights-well-being-workers. ↩︎
15. City of Boston, City to Begin Implementing Ordinance to Ensure Safety on Construction and Demolition Sites (October 23, 2023), https://www.boston.gov/news/city-begin-implementing-ordinance-ensure-safety-construction-and-demolition-sites. ↩︎
16. Janice Fine & Jennifer Gordon, Strengthening Labor Standards Enforcement through Partnerships with Workers’ Organizations, 38 Pol. & Soc’y 522 (2010); Seema N. Patel & Catherine Fisk, California Co-Enforcement Initiatives that Facilitate Worker Organizing, Harv. L. & Pol’y Rev (2018). ↩︎
17. Rachel Deutsch & Terri Gerstein, Power in Partnership: How Government Agencies and Community Partners are Joining Forces to Fight Wage Theft, Economic Policy Institute and Harvard Center for Labor and a Just Economy (June 8, 2023). ↩︎
18. Occupational Safety and Health Administration, Susan Harwood Training Grant Program, U.S. Department of Labor, https://www.osha.gov/harwoodgrants/overview. ↩︎
19. Deutsch & Gerstein, supra note 98. ↩︎
20. California Department of Industrial Relations, “Labor Commissioner’s Office,” https://www.dir.ca.gov/dlse/. ↩︎
21. Occupational Safety and Health Administration, Final Rule Clarifies Employee Representation During OSHA Inspections, https://www.osha.gov/worker-walkaround/final-rule. ↩︎
22. 29 CFR 1910.502(c)(5) (since expired). ↩︎
23. Proposed 29 CFR 1910.148(c)(6); proposed 29 CFR 1910.156(e). ↩︎
24. 42 CFR 483.71(b)(1). ↩︎