State Attorneys General Can Play Key Roles in Protecting Workers’ Rights

Working people in America are being shortchanged: They are working harder, but inequality is rising and wages for all but the highest-paid workers are failing to keep up with economy-wide productivity growth. Even worse, many workers are not being paid what they are owed by their employers, and the failure to enforce workers’ rights laws has resulted in billions of dollars in wages being stolen from workers’ paychecks. In the 10 most populous states in the country each year 2.4 million workers covered by state or federal minimum wage laws report being paid less than the applicable minimum wage in their state—approximately 17 percent of the states’ eligible low-wage workforce.

State attorneys general can be key allies in protecting workers’ rights by advancing and defending workplace protections and ensuring that employers comply with the law. All 50 states and the District of Columbia, as well as Puerto Rico and other territories, have attorneys general. Using their authority to enforce state laws, state attorneys general have played an affirmative role in protecting workplace rights.

Currently, there are several state attorney general offices that have units or staff dedicated to labor enforcement: California, Massachusetts, and New York have longstanding labor units, and, in recent years, new units have been created by District of Columbia Attorney General Karl Racine, Illinois Attorney General Lisa Madigan, and Pennsylvania Attorney General Josh Shapiro. Washington Attorney General Bob Ferguson has also increased his office’s involvement in labor enforcement.

State labor agencies, through varying arrangements, often refer labor and employment law cases to their attorneys general for enforcement. For example:

• In 2013, the Washington State Attorney General’s Office partnered with the state’s Department of Labor & Industries to launch an investigation into a construction company for multiple violations of the state’s prevailing wage and overtime pay laws. The attorney general’s office recovered more than $64,000 in unpaid wages plus $25,000 in interest for the 14 misclassified workers.
• In 2017, the New York Attorney’s Office, upon referral from and with the support of the state Department of Labor, prosecuted the owner of a home health care agency for wage theft. The owner was ultimately sentenced to one year in jail for defrauding 67 employees out of over $135,000 in wages.
• In 2015, Indiana’s attorney general brought a civil lawsuit, upon referral from its state labor agency, against a trucking company for wrongful termination and retaliation against an employee after that employee reported workplace violence in violation of Indiana’s Occupational Safety and Health Act.
• In 2017, the Massachusetts attorney general settled a case with the owners of an aerosol factory for nearly $1 million to resolve intentional overtime and minimum wage violations and for hindering the state’s investigation. Approximately 480 affected workers received restitution.

State attorneys general can also influence labor and employment policies and regulations by submitting comments to federal rulemaking bodies and participating in litigation before the United States Supreme Court.

In February 2018, a coalition of 17 state attorneys general filed public comments opposing the Trump administration’s proposal to rescind 2011 regulations that ensure employees can keep the tips they have earned. It is estimated that, under the proposed rule, employers would have pocketed $5.8 billion in tips earned by tipped workers each year. As a result of this advocacy (along with that of many other groups) the omnibus spending bill enacted by Congress on March 23, 2018, included a provision that provides America’s tipped workers with explicit protection of their hard-earned tips.

In November 2017, 21 state attorneys general filed a brief in the Janus v. AFSCME case, urging the Supreme Court to uphold fair share fee provisions in public-sector collective bargaining agreements.

A coalition of 18 state attorneys general also filed a brief in the Murphy Oil v. NLRB case, speaking out against the use of forced arbitration in employment contracts. An estimated 60 million American workers have been forced to give up their access to the courts to resolve employment disputes because of mandatory arbitration agreements in employment contracts. In a 5-4 decision on May 21, 2018, the court held that companies can force employees to sign arbitration clauses in their employment contracts, barring workers from joining class action lawsuits to enforce their basic rights in the workplace.

As the Me Too movement gains momentum, in February 2018 the attorneys general from every state and U.S. territory formed a bipartisan coalition to unanimously call on Congress to end the practice of secret, forced arbitration in cases of workplace sexual harassment. It’s been over a decade since attorneys general from across the political spectrum unanimously agreed on a position. But now that the Supreme Court has issued its decision in Epic Systems v. Lewis upholding class and collective action waivers in favor of forced arbitration in employment contracts, state attorneys general’s roles in protecting working people’s rights just became a lot more important.

The recent series of Supreme Court rulings and Trump administration decisions illustrate the ways in which our legal system and public policy has been used to undermine the worker protections of low- and middle-income Americans. At a time when too many of our institutions are aligned against the interests of the working class, it’s imperative that attorney’s general continue to use their powers to ensure our laws truly serve all Americans.

Marni von Wilpert is associate labor counsel at the Economic Policy Institute.