ICYMI: Democratic AGs Fighting for Hard-Working Families
September 8, 2020
As families and communities across the country grapple with the uncertainty of the current economic and public health crises, Labor Day 2020 was a particularly important moment to reflect on how we care for workers in this country. Democratic Attorneys General continue to stand side by side with workers—and in recent years, the leadership by Dem AGs on labor issues has made a huge difference in protecting workers’ rights, workers’ wages, and workers’ safety from the growing special interests.
A recent Philadelphia Inquirer article highlighted how Democratic Attorneys General are banding together to protect workers’ rights. The article spotlighted hometown AG Josh Shapiro and his commitment to labor issues and the effort by his office to bolster its labor portfolio.
In a piece for the American Prospect, Terri Gerstein details how Democratic AGs Are helping workers during this time of crisis—especially as the Trump administration continues to be absent in the fight to protect worker safety.
If you care about workers’ rights, electing a strong Democratic AG makes a huge difference.
The full Philadelphia Inquirer article can be read below
Pennsylvania Attorney General Josh Shapiro brought criminal charges last September against a Centre County mechanical contractor for allegedly underpaying its workers by more than $64,000 over at least five years.
The charges against Goodco Mechanical and its owner, Scott Good, were just one part of the attorney general’s strategy to crack down on scofflaw employers — a strategy that, according to a new report, places Pennsylvania on the forefront of a trend of state attorneys general using their powers to protect workers’ rights.
In the last five years, several state attorney general offices — including those in Pennsylvania and New Jersey — have launched units focused on defending workers, transforming their offices into what report author Terri Gerstein describes as a rarity: a high-profile government entity that’s willing to hold employers accountable. Previously, only three states had such units; now, there are nine, according to Gerstein’s Economic Policy Institute report published Thursday.
The trend marks a major shift, as attorneys general have not traditionally taken action on worker-related issues, said Gerstein, director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program.
The shift comes as workers have faced increasingly precarious working conditions, and the percent of the workforce represented by a union has dropped to a historic low. It’s also part of a local worker protection movement, as cities and states attempt to fill the void left by the Trump administration, which has not prioritized workers’ rights.
But perhaps most of all, worker issues have found footing in the national consciousness: “If you go back to 2008,” Gerstein said, “[these issues] were not in the newspaper headlines. It wasn’t a matter of such intense, focused, public concern.”
In most states, including Pennsylvania, the attorney general is an elected position. Voters, she said, care about these issues.
When Shapiro took office in 2017, he launched the Fair Labor Section. Led by Chief Deputy Attorney General Nancy A. Walker, a veteran labor lawyer, the division has negotiated partnerships with gig companies such as DoorDash to provide financial assistance to delivery workers with COVID-19 and helped grocery workers get access to protective equipment.
Shapiro also co-led a lawsuit last summer against the federal government brought by 25 attorneys general to challenge a U.S. Department of Labor rule change that they said would expose millions of workers to labor law violations. And in 2018, he co-led a coalition of 11 attorneys general in a bid to stop fast-food franchisors from using “no-poach” agreements, a form of noncompete agreement that makes it harder for low-wage workers to get a new job.
The emphasis on workers’ rights on the part of attorneys general aligns with similar activities on a municipal level: Philadelphia, like cities across the country, has passed a number of cutting-edge worker protection laws in the last few years. And last year, Philadelphia District Attorney Larry Krasner launched a unit to focus on crimes against workers, joining a growing number of district attorneys setting their sights on workers’ rights.
The full American Prospect piece by Terri Gerstein can be read below.
Trump’s administration is AWOL in the fight for worker safety, but a growing number of state attorneys general are focusing on worker rights and protections.
These are tough times for workers, with COVID-related risks layered atop a grossly distorted power disparity that has long enabled businesses to degrade working conditions and violate labor laws. Workers and unions have been fighting back with strikes, lawsuits, walkouts, and more.
But they shouldn’t have to do it alone. One basic function of government is keeping people safe. Another is enforcing the law. Unfortunately, President Trump’s labor team has barely lifted a finger to help workers.
Enter state attorneys general. In recent years, a number of them have been increasingly involved in workers’ rights, as documented in an Economic Policy Institute and Harvard Labor and Worklife Program report issued last month.
State attorneys general (AGs) represent their states in court when they’re sued, and also bring legal cases to protect the general public. They’ve taken on heroic battles—fighting Big Tobacco in the 1990s and the opioid industry today—and also stopped more-prosaic consumer frauds and scams.
Historically, protecting workers hasn’t been on their menu. But in the past several years, state AGs have begun bringing cases to protect working people, from big-headline lawsuits against Uber and Lyft, to more local cases involving a juice bar, a cleaning company, and a security guard business. They’ve fought wage theft by restaurants and home health agencies, the sexual harassment of women farmworkers and hard hats, and the misclassification of workers as independent contractors, rather than employees, by construction, education, and other companies.
State AGs have also acted to preserve job mobility by fighting against the use of noncompete agreements, which prevent people from being able to take a job with their bosses’ competitors. In consequence, Jimmy John’s sandwich shops, the co-working company WeWork, and others curtailed their use of such agreements.
Dedicated units ensure that someone in those AG offices has been specifically assigned to go to work every day thinking about how to use the office’s powers to protect workers.
In a number of states, AG offices have also fought Trump administration rollbacks. They’ve authored critical comments on proposed rules: a plan to permit employers to keep workers’ tips, and a proposal to allow minors to operate complicated patient lifts alone. (Both these proposals were ultimately scrapped.) Some have filed labor-related lawsuits against the Trump administration, like the New York AG’s lawsuit this summer that successfully challenged a Trump rule to narrow access to paid sick and family leave. Other state AG lawsuits have challenged a Trump rule on “joint employment” (which would make it easier for big companies to avoid responsibility for workplace laws when they subcontract or use temps) as well as the rollback of a rule requiring large companies to electronically report worker injuries and illness to the Occupational Safety and Health Administration (OSHA).
In the face of COVID-19 and in the absence of almost any OSHA enforcement of workplace safety requirements, some state AGs have been using whatever powers they can to protect workers. They’ve enforced stay-home orders against violators and defended such orders against legal challenges. Some have created a hotline for workers to report unsafe working conditions. Groups of state AGs have sent public inquiries to Walmart, Amazon, and Whole Foods, to get information about the companies’ paid leave policies, safety measures, and workplace infections and fatalities. They’ve collaborated with local health departments about dangerous jobsites. And state AGs have informally mediated with local companies, pressuring and helping employers to keep their workers safe.
Within the past five years, six of these AG offices—in D.C., Illinois, Michigan, Minnesota, New Jersey, and Pennsylvania—have created dedicated units devoted to labor issues (they joined California, Massachusetts, and New York, which have long had such units). Dedicated sections within the agency allow the assigned lawyers to develop specialized expertise and long-standing relationships with stakeholders like worker advocacy groups, unions, and employer associations. Dedicated units ensure that someone in those AG offices has been specifically assigned to go to work every day thinking about how to use the office’s powers to protect workers. These new sections are likely to outlast any particular administration, and they are likely to be signature aspects of these AGs’ legacies.
State AGs can play a role that is different from, and complementary with, state labor departments. While labor departments are generally the main enforcers within a jurisdiction, set up to handle a high volume of relatively similar incoming complaints, state AGs bring cases according to strategic impact-litigation criteria, seeking to change practices in an industry. They are also particularly well suited to take on new developments, like the growing use of noncompete clauses. And having more government agencies protecting workers serves as a kind of hedge: During my early years as a lawyer in the New York AG’s office, President George W. Bush and Gov. George Pataki—both Republicans—had business-friendly approaches to workplace issues. Having an AG (when I was there, Eliot Spitzer) zealously devoted to protecting workers proved valuable for working people in the state.
More state AGs should take on this work, especially in light of the pandemic’s impact on workers and the importance of ensuring job safety in order to reopen the economy. To be sure, the resources and power of state AG offices vary widely, but state AGs should devote at least some staff time and use whatever powers they have to protect workers’ rights. State legislatures should pass laws giving AGs unquestionably explicit jurisdiction to enforce labor laws, as D.C., Illinois, and Minnesota recently did. Ideally, legislatures would also provide funding for enforcement. (Labor enforcement can sometimes generate revenue, as when employers are required to pony up for unpaid unemployment or other taxes they’ve failed to pay.)
There’s a lot of bad news these days. But when good things happen, it’s important to take note. A cadre of smart state leaders and lawyers newly focused on workers’ rights can only make things better for workers nationwide.