justice for workers: state agencies can com bat w age theft
TRANSCRIPT
1
A NELP Guide for Advocates
October 2006 N a t i o n a l E m p l o y m e n t L a w P r o j e c t
JUSTICE FOR W ORKERS:
St a t e Ag en cies Ca n Co m b a t W a g e Theft
2
Justice for Workers
3
JUSTICE FOR W ORKERS:
St a t e Ag en cies Ca n Co m b a t W a g e Theft
A NELP Guide for Advocates
State Agencies Can Combat Wage Theft
4
Justice for Workers
About NELP
Since 1969, the National Employment Law Project (NELP) has advocated on behalf of low-wage workers and the unemployed. We advance the interests of low-wage workers with an emphasis on immigrant workers, contingent workers, the unemployed and other groups that face significant barriers to employment and government systems of support. NELP seeks to expand employment laws to meet the needs of temporary and other “nonstandard workers” and to ensure that employment laws meaningfully cover all workers, regardless of immigration status. NELP’s services include policy advocacy, support for organizing, litigation, training, research, public education and media strategies. NELP is particularly aware that legal rights that are not meaningfully enforced lose their meaning. To that end, NELP also works to ensure that laws that currently protect workers are actually enforced.
5
Page 5
State Agencies Can Combat Wage Theft
About This Guide
Immigrant and low-wage workers are particularly vulnerable to violations of minimum wage and overtime laws. This is partly because such workers are unlikely to know their rights or if they do, they are hesitant to confront their employers for fear of retaliation. Undocumented immigrant workers in particular are often wary of making a complaint because they fear that their employers will report them to immigration authorities and they will be deported. Undocumented immigrants are also reluctant to reach out directly to state enforcement agencies for fear that information about their immigration status will be reported to immigration authorities. Jobs in certain sectors are particularly bad, such as agriculture, garment industry, janitorial, home care, and day labor. When workers do seek help to enforce their employment rights, they often find insufficient resources to do so effectively. A worker’s first point of contact is likely to be a community based organization (CBO). But these organizations rarely have legal staff who can file civil claims on behalf of workers. If they do have lawyers on staff, there are generally too few of them to handle all member needs. Other legal service providers are often either prohibitively expensive or if they do provide services to indigent clients, they do not represent clients in employment disputes. Finally, CBOs and community legal service providers are chronically underfunded and lack the resources to mount extensive investigation and enforcement campaigns. The logical solution for advocates is to look to public enforcement agencies to share the burden of enforcing low-wage and immigrant workers’ employment rights. However, groups often report that they experience frustration and problems with these agencies when attempting to obtain assistance for their members. This guide offers some suggestions for how to work with agencies to enhance public enforcement. We have also attempted to provide concrete examples of ways in which agencies have already improved and can improve their practices. This guide is available online at: : http://www.nelp.org/docUploads/Justice%5Ffor%5FWorkers%2Epdf
6
Justice for Workers
Acknowledgements
This guide was inspired by suggestions and conversations with many different organizers and advocates from around the country. We hope this guide will continue to generate additional conversations and Ideas. We would particularly like to thank our volunteer, Mika Dashman, for her work in helping to develop this guide.
October 2006 Cathy Ruckelshaus
Amy Sugimori National Employment Law Project
7
Table of Contents:
The Problem 8
The Solution: Better State Enforcement of Wage Laws 11
Recommended Steps for a Wage Campaign 12
Appendix A: Suggested Practices for State Agencies Involved in Wage Enforcement
15
Appendix B: State Attorneys General: Model Practices Enforcing Worker Rights
26
Appendix C: Agency Enforcement of Criminal Laws 30
Appendix D: Model Agency Policy for Hoffman-fix 32
Endnotes 37
State Agencies Can Combat Wage Theft
8
Justice for Workers
The Problem Around the country, workers are denied the wages they are due. Across the country, growing numbers of workers are routinely paid less than the minimum wage, denied overtime pay, and retaliated against for speaking up about it. The situation is particularly dire for immigrant workers. The Urban Institute has reported that 2 million immigrant workers earned less than the minimum wage in 2002.1 Advocates, organizers and service providers from around the country routinely identify non-payment or underpayment of wages as a serious problem faced by low-wage and immigrant workers. Significantly, rates of working poverty are especially high in growth industries.
The U.S. Bureau of Labor Statistics has reported in 2003 that 30.1% of the working poor were employed in service jobs.2
As illustrated by this graph from the Bureau of Labor Statistics, the number of workers employed in the service sector has increased dramatically in the past 10 years. Most service jobs, where 11.2% of the working poor are employed, are not in compliance with federal wage and hour laws.3
In general, immigrant workers face higher rates of poverty than native-born workers
Undocumented Workers Foreign-born Workers Native-born Workers A report by the Urban Institute reveals that in 2002, foreign-born workers made up 11.8% of the entire workforce but 20% of low-wage workers, defined as making less than 200% of the minimum wage.4
Graph: Bureau of Labor Statistics, All Employees, Service–Providing
t ot a l
wor k e r s
l ow - wa ge
t o t al
wo rkers
lo w - wag e
t o t al
wo rkers
lo w - wag e
9
t ot a l
wor k e r s
l ow - wa ge
In many states, immigrant workers occupy a large and growing segment of the low-wage workforce.
Over the 1990-2001 period, new immigrant workers accounted for nearly 45% of the net increase in employment across the country.5 All of the labor force growth in the Northeast region was due to new foreign immigration as was 50 percent of the growth in the West.6 Researchers at Northeastern University concluded that “[a]t no time in the past 90 years was the nation so dependent on immigrant labor to meet its growing need for labor.”7 Based on the March 2004 Current Population Survey, there are an estimated 7 million undocumented immigrants in the U.S. labor force.8 While the majority – 61% - of undocumented immigrants live in 6 states: California, Texas, New York, Florida, Illinois and New Jersey, the most rapid growth has been outside those states.9
Workers’ wage rights are violated in a variety of different ways, including: • Failure to pay overtime. • Improper deductions from pay bringing actual wages received below the minimum wage. • Failure to pay for all hours worked. • Improperly failing to pay workers who receive tips. • Payment based on a below-minimum hourly wage. • Payment with bad checks. • Improperly classifying workers as “independent contractors” as a means of avoiding
compliance with the law. Violations of wage rights have a huge impact on low-wage workers. A person working full-time for the federal minimum wage of $5.15 an hour makes only $10,712 annually. According the U.S. Department of Health and Human Services, the 2006 poverty threshold for a family of 2 is $13,200.10 It is incredibly difficult to get by, let alone support a family on the minimum wage. Any wage violations that chisel away at already-low take-home pay make it even harder.
“A person working full-time for the federal minimum wage of $5.15 an hour makes only $10,712 annually.”
State Agencies Can Combat Wage Theft
10
Justice for Workers
Minimum wage laws are not adequately enforced
Federal enforcement of wage and hour laws has declined. A recent policy brief issued by the Brennan Center for Justice reported that over the period from 1975-2004, “[t]he number of Wage and Hour investigators declined by 14%” to only 788 individuals nationwide and “[t]he number of compliance actions completed declined by 36%.11
Many States do not allocate sufficient resources to wage enforcement. • Over the past eight years, actual enforcement has declined in the New York State
Department of Labor (“NYS DOL”). This leaves workers in New York State with little hope that one of the agencies charged with enforcing labor laws will take their claims. Jordan Rau, NY Labor Law Enforcement: A Fight for Fair Pay, State Labor Agency’s Reinforcement of Rules Requiring Proper Wage for Workers Has Waned During Pataki’s Tenure, New York Newsday, p.A.06, April 11, 2004.
• California’s Department of Labor Standards Enforcement failed to adequately enforce a
new garment worker anti-sweatshop law, recovering only a fraction of damages owed to workers in the years since the law was passed, according to an advocacy report focusing on Los Angeles County in 2005. Sweatshop Watch, Reinforcing the Seams: Guaranteeing the Promise of California’s Landmark Anti-Sweatshop Law (September 2005). This same report found that there was less than a 1% chance that the state would sanction a garment contractor by revoking its license if it failed to turn over business records during an investigation.
11
The Solution: Better State Enforcement of Wage Laws
Enforcement of wage laws is good for states and good for the economy. States have good reasons to be concerned about employer violations of the minimum wage and overtime laws. There are quantifiable economic costs to states associated with low-road
business practices. For example, a common problem encountered by advocates and state enforcement agencies is 1099 misclassification. Employers misclassify workers as independ-ent contractors as a means to cut costs and chisel away labor rights. Employers who misclas-sify and/or underpay workers are not contributing to state coffers filled by tax revenues.12 Moreover strong wage and hour enforcement policies and activities are good for the economy and encourage competition. Employers who pursue low-road business practices and under-pay their workers unfairly disadvantage law-abiding employers in a competitive marketplace. This is has been the case in many industries including agriculture, garment manufacturing and restaurants.
Community –Based Efforts to Enforce Fair Pay
March 2005 National Strategy Forum to Enforce Fair Pay
In March 2005, NELP and the Brennan Center’s National Strategy Forum to Enforce Fair Pay brought together representatives from workers’ centers, labor unions, advocacy organizations, legal services offices and state and local government to share strategies for ensuring existing laws protecting workers’ right to be paid are enforced. The forum opened up new coordinated strategies to enforce workplace rights and revealed the extent to which campaigns on work-place violations can be a platform for broader organizing of low-wage workers. For examples of wage-enforcement campaigns and more on the conference, see http://www.nelp.org/docUploads/wage%20conference%20summary.pdf.
There are quantifiable economic costs to states associated with low-road
business practices.
State Agencies Can Combat Wage Theft
12
Recommended Steps For a Wage Campaign
1) Determine what laws apply.
o Does your state have: • A minimum wage law? • An overtime law?
• A “payday” law?
• Criminal penalties for failure to pay wages?
A fact sheet on agency enforcement of criminal laws is available as Appendix C to this guide.
2) Identify the scope of the problem
o Survey your members: • About their awareness of their wage rights. • About their experiences of being unpaid or underpaid
o See if there is already research documenting workplace wage abuses for your jobs. Some examples are: U.S. DOL surveys on agriculture, poultry processing, garment industry and nursing homes; private research reports on day laborers and restaurant workers.13
o Document stories about your members’ experiences with unpaid wages. o Collect newspaper clippings that cover the problem. o Work with the media to publish stories.
The U.S. Department of Labor (DOL) has an interactive map of the states indicat-ing which ones have minimum wage or overtime laws at http://www.dol.gov/esa/
Some states that do not have minimum wage or overtime laws still have laws re-quiring employers to pay wages when due. The U.S. DOL has a chart of these laws at http://www.dol.gov/esa/programs/whd/state/payday.htm
Many states have a provision in their criminal code prohibiting “theft of services” or “theft of labor” and/or provisions in their labor codes that create criminal pen-alties for failure to pay wages in certain cases. A 50-state chart of these laws is available at, http://www.nelp.org/docUploads/criminal%20penalties%20for%20unpaid%20wages%2Epdf
The Data Center in Oakland has a very useful participatory research toolkit for developing surveys at http://www.datacenter.org/research/creatingsurveys/index.htm
The Spin Project of the Independent Media Institute has a tutorial on Community Organizing and Strategic Communications in the Resources section of their web-site https://secure.spinproject.org/
State Agencies Can Combat Wage Theft
13
Justice for Workers
3) Identify who is empowered to enforce the state law.
o Does your state have a Department of Labor? • If so, does it enforce the minimum wage, overtime and/or payday laws?
o Does your state Attorney General (AG) enforce wage laws? A chart describing state AGs’ powers to advance the rights of low-wage and immigrant workers, with examples is available as Appendix B to this guide.
3) If the state DOL or AG does enforce the wage laws, have you worked with them? o If so, assess your experiences:
• Survey members, communities about experiences attempting the enforce their wage rights with the agency
o If not, get to know how they work:
• Do they have complaint forms? Are they available in multiple languages? • What is the process for initiating a complaint with the agency? • Does the agency provide public education materials that are accessible to the
communities with which you work? • Look at the chart in Appendix A for other ideas.
o Is there a way to develop a positive collaboration with the agency? o Can you suggest practices to agency staff that would be useful?
5) Has the community you serve faced problems trying to work with the state AG or DOL to enforce wage rights?
o Consider drafting a report outlining the challenges:
• Use survey data gathered from members and communities. • Use stories to illustrate problems. • Propose concrete ways in which the problems can be addressed: see the attached
chart at Appendix B for model practices and examples from other states. • Make the case for why wage enforcement is good for your community, for all
workers, for the state, for law-abiding businesses. o Would the recommendations you make require legislative changes?
The Interstate Labor Standards Association has a contact list of state Departments of Labor on its website at http://www.ilsa.net/contacts/contact.htm. You can visit your state’s Department of Labor website or call them to find out what laws they enforce.
Even if your state AG does not enforce wage laws, he or she may have the power to do so. NELP has developed a 50-state chart of the powers of AGs which is available at: http://www.nelp.org/docUploads/State%20Jurisdiction%20Chart%2Epdf
14
• Can you find allies, for example, a law school clinic or a nonprofit law office, who can do legal research and draft a report of existing agency authority and legislative changes that would be needed? NELP can help you identify such allies.
State Agencies Can Combat Wage Theft
Enacting a Living Wage If your state does not have a minimum wage or overtime law, you may be interested in working on a campaign to pass such laws at the state or possibly municipal level. If your state has a low minimum wage, you may be interested in working on a campaign to raise it. ACORN has resources for these types of campaigns at http://www.livingwagecampaign.org/.
15
Justice for Workers
Appendix A: Suggested Practices for State Agencies Involved in Wage Enforcement
16
A
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State Agencies Can Combat Wage Theft
17
Justice for Workers
RE
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art
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ide
s p
rep
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by
the
De
pa
rtm
en
t o
f La
bo
r S
tan
da
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En
forc
em
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t.
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nn
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t cr
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est
au
ran
t in
du
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hts
gu
ide
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fun
ds
colle
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d f
rom
civ
il p
en
alt
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ee
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ttp
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ww
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l.st
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us/
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kst
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ste
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vid
e o
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ea
ch a
nd
ed
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-ti
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to
em
plo
yers
. A
ge
nci
es
sho
uld
fo
cus
on
ed
uca
tio
n a
bo
ut
pe
na
ltie
s a
nd
co
nse
qu
en
ces
of
vio
lati
on
th
e la
w.
Em
plo
yer
ou
tre
ach
mu
st n
ot
be
pro
vid
ed
to
th
e e
xclu
sio
n o
f w
ork
er
ou
tre
ach
& e
du
ca-
tio
n. (
Th
is is
wh
at
ma
ny
sta
te D
OLs
an
d t
he
F
ed
’l D
OLs
do
.)
Pu
blis
h jo
b c
lass
ific
ati
on
s/
cate
go
rie
s a
nd
pre
vaili
ng
wa
ge
ra
tes
on
th
e in
tern
et
for
ea
sy p
ub
lic a
cce
ss.
Mo
de
l P
ract
ice
E
xam
ple
s N
ote
s
18
TA
RG
ET M
ISC
LA
SS
IFIC
ATIO
N O
F W
OR
KE
RS
AS
IN
DE
PE
ND
EN
T C
ON
TR
AC
TO
RS
De
velo
p jo
int
age
ncy
p
art
ne
rsh
ips
to a
ud
it
em
plo
yers
an
d id
en
tify
m
iscl
ass
ifie
d e
mp
loye
es
wh
o d
o n
ot
me
et
the
cr
ite
ria
fo
r in
de
pe
nd
en
t co
ntr
act
ors
NJ
Wo
rke
r M
iscl
ass
ific
ati
on
In
itia
tive
htt
p:/
/w
ww
.sta
te.n
j.u
s/la
bo
r/p
ress
/20
06
/07
19
Wo
rke
rMis
cla
ssif
ica
tio
n.h
tm
Ca
lifo
rnia
Em
plo
yme
nt
De
velo
pm
en
t D
ep
art
me
nt
Ass
ess
-m
en
t o
f m
iscl
ass
ific
ati
on
by
cou
rie
r co
mp
an
ies.
h
ttp
://
ww
w.e
dd
.ca
.go
v/ta
xre
p/t
axn
ew
s.h
tm
INC
RE
AS
E C
OS
TS
OF
VIO
LA
TIN
G T
HE
LA
W
Re
du
ce D
OL d
iscr
eti
on
re
-ga
rdin
g w
he
the
r to
se
ek
liq
-u
ida
ted
da
ma
ge
s, a
pp
ly c
ivil
pe
na
ltie
s, h
ow
ma
ny
yea
rs o
f d
am
age
s to
se
ek
, e
tc.
– t
he
n
pro
vid
e t
ha
t ci
vil p
en
alt
ies
go
ba
ck t
o D
OL f
or
mo
re e
n-
forc
em
en
t.
Cre
ate
me
an
ingfu
l st
an
da
rds
for
age
nci
es
in s
ett
ling
cla
ims
– le
ss d
iscr
eti
on
.
E.g
., a
n a
ge
ncy
re
pre
sen
tati
ve m
ay
no
t se
ttle
wit
h a
n e
m-
plo
yer
for
less
th
an
50
% o
f w
age
s o
we
d.
Ma
ke
str
ate
gic
use
of
me
dia
. A
ge
nci
es
can
ho
ld p
ress
co
nfe
ren
ces
an
d p
ub
liciz
e e
m-
plo
yer
vio
lati
on
s a
s a
me
an
s to
sh
am
e t
he
m in
to c
om
pli-
an
ce.
Ho
ldin
g p
ress
co
nfe
ren
ces
an
d p
ub
liciz
ing
lack
of
com
plia
nce
wit
h w
age
/ho
ur
law
s h
as
be
en
an
eff
ect
ive
dir
ect
act
ion
ta
ctic
a
ga
inst
em
plo
yers
. T
he
sa
me
str
ate
gy
can
a
lso
be
use
d t
o p
ress
ure
sta
te e
nfo
rce
me
nt
age
nci
es
to b
e m
ore
re
spo
nsi
ve &
pro
ac-
tive
.
Inst
itu
te a
dm
inis
tra
tive
lie
ns
an
d b
an
k le
vie
s (s
ee
if
legis
-la
tio
n is
ne
ed
ed
)
Te
xas:
Wh
en
an
ord
er
for
an
em
plo
yer
to p
ay
mo
ne
y to
th
e
Co
mm
issi
on
fo
r th
e u
se a
nd
be
ne
fit
of
an
em
plo
yee
ha
s b
eco
me
fin
al, t
he
la
w a
llow
s fo
r a
dm
inis
tra
tive
lie
ns
an
d
ba
nk
le
vie
s. T
he
Co
mm
issi
on
ma
y a
ssig
n t
he
ad
min
istr
a-
tive
lie
n t
o t
he
cla
ima
nt
at
the
cla
ima
nt’
s re
qu
est
. T
exa
s La
bo
r C
od
e S
ect
ion
61
.08
1;
61
.09
3
htt
p:/
/ww
w.c
ap
ito
l.st
ate
.tx.
us/
sta
tute
s/la
.to
c.h
tm
State Agencies Can Combat Wage Theft
Mo
de
l P
ract
ice
E
xam
ple
s N
ote
s
19
Justice for Workers
R
evi
ew
wa
ge
an
d h
ou
r re
cord
s o
f th
e e
nti
re w
ork
pla
ce o
r d
e-
pa
rtm
en
t a
fte
r re
ceiv
ing a
wa
ge
cl
aim
fro
m o
ne
wo
rke
r.
Th
is is
som
eth
ing t
he
U.S
. D
ep
art
me
nt
of
La
bo
r d
oe
s.
Th
is is
als
o o
ne
wa
y to
pro
tect
in
div
idu
al w
ork
ers
’ id
en
titi
es
an
d
to a
void
em
plo
yer
reta
liati
on
.
Se
t b
en
chm
ark
s fo
r a
mo
un
ts
reco
vere
d,
site
s in
vest
iga
ted
by
the
age
ncy
.
Est
ab
lish
re
gu
lar
(e.g
., q
ua
r-te
rly/
mo
nth
ly)
rep
ort
ing r
e-
qu
ire
me
nts
so
th
at
the
pu
blic
m
ay
sta
y in
form
ed
of
age
nci
es’
e
nfo
rce
me
nt
act
ivit
ies.
CT m
on
thly
re
po
rtin
g a
vaila
ble
on
th
e w
eb
h
ttp
://w
ww
.ctd
ol.st
ate
.ct.
us/
wgw
kst
nd
/act
ivit
ies/
wgrp
ts.h
tm
Est
ab
lish
a m
axi
mu
m t
ime
fr
am
e f
or
age
ncy
in
vest
iga
tio
ns
so t
ha
t th
ey
can
no
t d
rag o
n f
or
mo
nth
s.
Est
ab
lish
po
licy
of
tolli
ng s
tat-
ute
s o
f lim
ita
tio
ns
on
ce t
he
a
ge
ncy
ta
ke
s o
n a
n in
vest
iga
-ti
on
.
In o
the
r w
ord
s, w
he
n a
sta
tute
of
limit
ati
on
s p
reve
nts
a w
ork
er
fro
m f
ilin
g a
la
wsu
it a
fte
r a
ce
rta
in p
eri
od
of
tim
e h
as
ela
pse
d,
the
sta
tuto
ry c
lock
will
sto
p d
uri
ng t
he
pe
rio
d w
he
n t
he
age
ncy
is
inve
stig
ati
ng t
he
wo
rke
r’s
cla
im. R
ega
rdle
ss o
f w
he
the
r su
ch a
to
llin
g p
olic
y is
in
pla
ce,
the
age
ncy
sh
ou
ld b
e r
eq
uir
ed
to
no
tify
w
ork
ers
wh
eth
er
the
ir c
lock
is
tick
ing o
n t
he
ir d
ea
dlin
e t
o g
o t
o
cou
rt.
Th
is is
an
im
po
rta
nt
po
licy
be
-ca
use
age
ncy
in
vest
iga
tio
ns
can
o
fte
n t
ake
a lo
ng t
ime
an
d a
gre
at
de
al o
f re
sou
rce
s. If
to
llin
g
is n
ot
in e
ffe
ct,
wo
rke
rs m
ay
lose
a
cce
ss t
o r
em
ed
ies
wh
ile r
ely
ing
on
th
e a
ge
ncy
to
ta
ke
act
ion
. I
f th
e o
utc
om
e o
f a
n a
ge
ncy
in
vest
i-ga
tio
n is
inco
ncl
usi
ve o
r if
no
evi
-d
en
ce is
fou
nd
to
su
pp
ort
th
e
wo
rke
r’s
cla
im,
the
n t
he
age
ncy
m
ay
no
t ta
ke
an
y a
ctio
n a
t a
ll a
ga
inst
th
e e
mp
loye
r. In
su
ch
circ
um
sta
nce
s, t
he
wo
rke
r w
ill b
e
left
wit
ho
ut
red
ress
in
co
urt
if
th
e
sta
tute
of
limit
ati
on
s h
as
run
be
-fo
re t
he
age
ncy
de
term
ina
tio
n is
issu
ed
.
Mo
de
l P
ract
ice
E
xam
ple
s N
ote
s
20
E
NS
UR
E A
CC
ES
S T
O E
NF
OR
CE
ME
NT F
OR
IM
MIG
RA
NT C
OM
MU
NIT
IES
Tra
nsl
ate
wri
tte
n m
ate
ria
ls
(in
clu
din
g “
kn
ow
yo
ur
righ
ts”
pa
mp
hle
ts a
nd
co
mp
lain
t fo
rms)
in
to m
ult
iple
fo
reig
n
lan
gu
age
s a
cco
rdin
g t
o t
he
n
ee
ds
of
loca
l im
mig
ran
t co
mm
un
itie
s.
Th
e L
ab
or
Bu
rea
u a
t th
e N
Y A
G’s
off
ice
cre
ate
d a
n in
for-
ma
tio
n c
ard
th
at
pro
vid
es
de
tails
ab
ou
t th
e m
inim
um
w
age
in
clu
din
g its
ap
plic
ati
on
to
tip
pe
d e
mp
loye
es.
Th
e c
ard
is
ava
ilab
le in
te
n la
ngu
age
s (E
nglis
h,
Sp
an
-is
h,
Fre
nch
, K
ore
an
, tr
ad
itio
na
l a
nd
sim
plif
ied
Ch
ine
se,
Urd
u,
Ba
ngla
, H
ind
i, a
nd
Ru
ssia
n)
at
ww
w.o
ag.s
tate
.ny.
us .
Th
e M
A O
AG
“G
uid
e t
o W
ork
pla
ce R
igh
ts a
nd
Re
spo
nsi
bili
-ti
es”
is
ava
ilab
le in
8 la
ngu
age
s.
La
ws
ma
y b
e e
na
cte
d c
rea
tin
g b
en
chm
ark
s fo
r w
he
n m
a-
teri
als
sh
ou
ld b
e a
vaila
ble
in
ce
rta
in la
ngu
age
s.
E.g
.,
the
Ma
ssa
chu
sett
s u
ne
mp
loym
en
t co
mp
en
sati
on
la
w
req
uir
es
tha
t a
ll n
oti
ces
an
d m
ate
ria
ls b
e a
vaila
ble
in
E
nglis
h,
Sp
an
ish
, C
hin
ese
, H
ait
ian
Cre
ole
, It
alia
n,
Po
r-tu
gu
ese
, V
ietn
am
ese
, La
oti
an
, K
hm
er,
Ru
ssia
n,
an
d
an
y o
the
r la
ngu
age
th
at
is t
he
pri
ma
ry la
ngu
age
of
at
lea
st 1
0,0
00
or
5%
of
all
resi
de
nts
of
the
co
mm
on
-w
ea
lth
. (
Se
e: M
ass
. G
en
. La
ws
Ch
.15
1A
§6
2A
)
Pro
vid
e a
cce
ss t
o m
ult
ilin
-gu
al a
ge
ncy
sta
ff-m
em
be
rs.
Pa
rtn
er
wit
h c
om
mu
nit
y gro
up
s w
ho
ha
ve t
he
ir r
oo
ts
in im
mig
ran
t co
mm
un
itie
s.
Th
e N
ew
Yo
rk A
tto
rne
y G
en
era
l w
ork
s w
ith
co
mm
un
ity
gro
up
s to
ed
uca
te w
ork
ers
an
d t
o e
nfo
rce
th
e m
ini-
mu
m w
age
sin
ce t
he
sta
te’s
min
imu
m w
age
in
cre
ase
d
in J
an
ua
ry 2
00
5. S
ee
pre
ss r
ele
ase
at
htt
p:/
/w
ww
.oa
g.s
tate
.ny.
us/
pre
ss/2
00
5/m
ar/
ma
r03
a_0
5.h
tml
In Illi
no
is t
he
Ch
ica
go
Are
a W
ork
ers
Rig
hts
In
itia
tive
(C
AW
RI)
is
a c
oa
litio
n o
f st
ate
an
d f
ed
era
l la
w e
nfo
rce
-m
en
t a
ge
nci
es,
an
d C
hic
ago
are
a c
om
mu
nit
y la
bo
r a
nd
fa
ith
-ba
sed
org
an
iza
tio
ns
de
dic
ate
d t
o a
ssis
tin
g
low
-wa
ge
an
d im
mig
ran
t w
ork
ers
. T
he
mis
sio
n o
f C
AW
RI
is t
o e
sta
blis
h a
str
on
g g
ove
rnm
en
t /n
on
-go
vern
me
nt
pa
rtn
ers
hip
an
d s
tre
am
line
th
e p
roce
ss
for
filin
g c
om
pla
ints
wit
h g
ove
rnm
en
t a
ge
nci
es
so t
ha
t w
ork
ers
in
th
e C
hic
ago
are
a c
an
su
cce
ssfu
lly a
dd
ress
th
e in
just
ice
s a
nd
ab
use
s th
ey
face
in
th
e w
ork
pla
ce.
C
AW
RI p
art
ne
rs in
clu
de
: U
SD
OL,
EE
OC
, O
SH
A,
Illin
ois
D
OL,
IL w
ork
ers
’ C
om
pe
nsa
tio
n C
om
mis
sio
n, C
en
ter
for
Imp
act
Re
sea
rch
, Le
ga
l A
ssis
tan
ce F
ou
nd
ati
on
, C
hic
ago
In
terf
ait
h C
om
mit
tee
on
Wo
rke
r Is
sue
s a
nd
La
tin
o U
nio
n. h
ttp
://w
ww
.iw
j.o
rg/o
utr
ea
ch/d
ol.h
tml
Ca
uti
on
: A
ge
nci
es
sho
uld
no
t th
ink o
f fo
rmin
g
alli
an
ces
wit
h c
om
mu
nit
y gro
up
s a
s a
n e
nd
in
it
self
. A
ge
nci
es
sho
uld
wo
rk c
lose
ly w
ith
co
m-
mu
nit
y gro
up
s b
ut
sho
uld
als
o c
on
tin
ue
to
p
urs
ue
aggre
ssiv
e in
vest
iga
tio
n/e
nfo
rce
me
nt
stra
tegie
s o
n t
he
ir o
wn
. A
ge
nci
es
als
o s
ho
uld
n
ot
att
em
pt
to s
hif
t th
e b
urd
en
of
inve
stig
a-
tio
n/e
nfo
rce
me
nt
on
to u
nd
er-
reso
urc
ed
co
m-
mu
nit
y gro
up
s.
State Agencies Can Combat Wage Theft
Mo
de
l P
ract
ice
E
xam
ple
s N
ote
s
21
Justice for Workers
Pro
vid
e lin
ks
to o
the
r a
dvo
-ca
cy g
rou
ps
on
age
ncy
we
b-
site
. P
rovi
de
co
nta
ct in
for-
ma
tio
n f
or
gro
up
s in
wri
tte
n
lite
ratu
re.
Pro
vid
e c
on
tact
in
form
ati
on
fo
r e
nfo
rce
me
nt
age
nci
es
in
ne
igh
bo
rin
g s
tate
s o
n a
ge
ncy
w
eb
site
in
sm
all
sta
tes
an
d
bo
rde
r re
gio
ns.
MD
DO
L d
oe
s th
is o
n t
he
ir w
eb
site
—e
xpla
inin
g t
ha
t a
n-
oth
er
en
forc
em
en
t a
ge
ncy
mig
ht
ha
ve ju
risd
icti
on
ove
r a
wo
rke
r’s
cla
im if
the
vio
lati
on
to
ok
pla
ce in
an
oth
er
sta
te,
eve
n if
the
wo
rke
r re
sid
es
in M
D.
Allo
w w
ork
ers
to
file
cla
ims
an
on
ymo
usl
y.
Ne
w J
ers
ey
Ca
lifo
rnia
U
S D
OL
Th
is is
link
ed
to
im
mig
ran
ts’ le
git
ima
te f
ea
r o
f e
mp
loye
r re
talia
tio
n a
fte
r m
ak
ing a
w
age
/ho
ur
com
pla
int.
Ho
ffm
an
Pla
stic
fix
le
gis
la-
tio
n.
Aft
er
the
U.S
. S
up
rem
e C
ou
rt d
eci
sio
n in
Ho
ffm
an
Pla
stic
s v.
NL
RB
, so
me
sta
tes
ha
ve c
lari
fie
d
tha
t th
e S
up
rem
e
Co
urt
’s d
eci
sio
n d
oe
s n
ot
imp
act
rig
hts
un
de
r st
ate
la
bo
r a
nd
em
plo
yme
nt
law
s. Th
is c
an
be
acc
om
plis
he
d e
ith
er
thro
ugh
le
gis
lati
on
or
po
licy
ad
voca
cy.
Le
gis
lati
on
e
.g., C
A: S
B 1
81
8
Po
licy e.g
., N
Y A
G f
orm
al o
pin
ion
(S
ee
htt
p:/
/w
ww
.oa
g.s
tate
.ny.
us/
law
yers
/op
inio
ns/
20
03
/fo
rma
l/2
00
3_f3
.htm
l), W
A (
Se
e 5
/21
/02
le
tte
r fr
om
G
ary
Mo
ore
, D
ire
cto
r o
f s
tate
DO
L s
tati
ng t
ha
t a
ll w
ork
ers
are
co
vere
d b
y w
ork
ers
co
mp
, re
ga
rdle
ss o
f im
mig
rati
on
sta
tus
(ava
ilab
le a
t h
ttp
://w
ww
.ne
lp.o
rg/
iwp
/re
form
/sta
te/a
pp
en
dix
wa
do
l.cf
m)
NE
LP
ha
s m
od
el la
ngu
age
fo
r st
ate
age
n-
cie
s th
at
wis
h t
o im
ple
me
nt
a p
olic
y fi
x.
(Se
e a
pp
en
dix
D).
En
forc
em
en
t e
ffo
rts
sho
uld
b
e e
ven
ly d
istr
ibu
ted
acc
ord
-in
g t
o p
op
ula
tio
n a
nd
no
t fa
vor
cert
ain
re
gio
ns
of
the
st
ate
to
th
e e
xclu
sio
n o
f o
th-
ers
.
Mo
de
l P
ract
ice
E
xam
ple
s N
ote
s
22
P
RO
VID
E M
EA
NIN
GF
UL P
RO
TE
CTIO
NS
AG
AIN
ST E
MP
LO
YE
R R
ETA
LIA
TIO
N
RE
TA
LIA
TIO
N B
AS
ED
ON
IM
MIG
RA
TIO
N S
TA
TU
S
Do
no
t co
mb
ine
wa
ge
/ho
ur
en
forc
em
en
t a
ctiv
itie
s w
ith
im
mig
rati
on
en
forc
em
en
t ta
r-ge
ted
at
the
wo
rke
rs.
E.g
. U
.S.
De
pt
of
La
bo
r. “
Me
mo
ran
du
m o
f U
nd
ers
tan
d-
ing [
wit
h I
NS
]”
htt
p:/
/ww
w.d
ol.go
v/e
sa/w
ha
tsn
ew
/w
hd
/mo
u/n
ov9
8m
ou
.htm
—th
is s
till
ap
plie
s to
IC
E.
US
CIS
Op
era
tio
n In
stru
ctio
n 2
87
.3a
pro
vid
es
a la
yer
of
bu
rea
ucr
ati
c in
sula
tio
n a
ga
inst
im
mig
rati
on
in
vest
i-ga
tio
ns
init
iate
d a
s re
talia
tio
n w
he
re a
la
bo
r d
isp
ute
is
in
pro
gre
ss. S
ee
, h
ttp
://u
scis
.go
v/lp
Bin
/lp
ext
.dll/
inse
rts/
slb
/slb
-1/s
lb-4
53
20
/slb
-52
82
2?
f=te
mp
late
s&fn
=d
ocu
me
nt-
fra
me
.htm
#sl
b-o
i28
73
a
Pro
vid
e g
ua
ran
tee
s th
at
imm
i-gra
tio
n s
tatu
s w
ill n
ot
be
ga
th-
ere
d, o
r if
ga
the
red
it
will
be
k
ep
t co
nfi
de
nti
al.
If t
his
is
off
icia
l a
ge
ncy
po
licy
it s
ho
uld
b
e w
ell
pu
blic
ize
d a
nd
dis
-cu
sse
d e
xplic
itly
by
age
ncy
o
utr
ea
ch s
taff
.
NY
AG
op
inio
n (
Se
e, h
ttp
://w
ww
.oa
g.s
tate
.ny.
us/
law
yers
/op
inio
ns/
20
03
/fo
rma
l/2
00
3_f3
.htm
l)
CA
’s S
B1
81
8—
Se
e s
tate
me
nt
by
De
an
Fry
er,
sp
ok
es-
ma
n f
or
the
De
pa
rtm
en
t o
f In
du
stri
al R
ela
tio
ns
qtd
. in
Sa
n D
iego
Un
ion
Tri
bu
ne
, Ja
n 2
8,
20
04
: "[
imm
igra
tio
n s
tatu
s i]
s n
ot
som
eth
ing w
e'r
e c
on
-ce
rne
d a
bo
ut.
It's
no
t in
ou
r ju
risd
icti
on
. If
yo
u w
ork
in
Ca
lifo
rnia
yo
u'r
e e
nti
tle
d t
o t
he
ba
sic
(la
bo
r) p
rovi
-si
on
s p
rovi
de
d b
y la
w."
W
A—
Se
e 5
/21
/02
le
tte
r fr
om
Ga
ry M
oo
re,
Dir
ect
or
of
st
ate
DO
L s
tati
ng t
ha
t a
ll w
ork
ers
are
co
vere
d b
y w
ork
ers
co
mp
, re
ga
rdle
ss o
f im
mig
rati
on
sta
tus
(ava
ilab
le a
t h
ttp
://w
ww
.ne
lp.o
rg/i
wp
/re
form
/sta
te/
ap
pe
nd
ixw
ad
ol.cf
m)
Sta
te a
ge
nci
es
som
eti
me
s re
qu
ire
co
m-
pla
ina
nts
to
pro
vid
e S
SN
s. T
his
is
no
t u
su-
ally
ne
cess
ary
an
d a
cts
to d
ete
r m
an
y im
mi-
gra
nts
. S
ee
, N
ELP
: Ta
lkin
g P
oin
ts In
Su
p-
po
rt o
f C
ha
llen
ge
s to
Sta
te A
ge
ncy
Use
of
So
cia
l S
ecu
rity
Nu
mb
ers
htt
p:/
/w
ww
.ne
lp.o
rg/d
ocU
plo
ad
s/S
tate
DO
LS
SN
Ta
lkin
g%
20
Po
ints
%2
Ep
df
Allo
w c
om
mu
nit
y o
rga
niz
a-
tio
ns
& u
nio
ns
to f
ile w
age
cl
aim
s o
n b
eh
alf
of
wo
rke
rs
Illin
ois
da
y la
bo
r la
w: P
ub
lic A
ct:
09
4-0
51
1,
pro
vid
es
for
a p
riva
te r
igh
t o
f a
ctio
n a
nd
pe
rmit
s a
ny
pa
rty
to s
ee
k
pe
na
ltie
s.
Sa
n F
ran
cisc
o liv
ing w
age
la
w p
erm
its
ind
ivid
ua
l w
ork
ers
, u
nio
ns
an
d c
om
mu
nit
y gro
up
s th
at
rep
rese
nt
wo
rke
rs
at
the
wo
rksi
te t
o f
ile c
laim
s:
SF
Mu
nic
ipa
l C
od
e, S
ec-
tio
n 1
2R
C
alif
orn
ia L
ab
or
Co
de
Se
ctio
n 2
69
8 P
riva
te A
tto
rne
ys
Ge
ne
ral A
ct o
f 2
00
4.
Be
cau
se w
ork
ers
are
oft
en
afr
aid
to
co
me
fo
rwa
rd t
he
mse
lve
s, it
is h
elp
ful to
pro
vid
e
for
a r
ep
rese
nta
tive
ca
use
of
act
ion
.
State Agencies Can Combat Wage Theft M
od
el P
ract
ice
E
xam
ple
s N
ote
s
23
Justice for Workers
LE
GIS
LA
TIV
E S
TR
ATE
GIE
S F
OR
IM
PR
OV
ING
EN
FO
RC
EM
EN
T
Est
ab
lish
civ
il a
nd
cri
min
al
pe
na
ltie
s
Se
e N
ELP
re
sou
rce
s: A
n A
dvo
cate
s To
olk
it:
Usi
ng
Cri
min
al Th
eft
of
Se
rvic
e L
aw
s To
En
forc
e W
ork
ers
R
igh
t to
be
Pa
id.
Pre
pa
red
by
form
er
NE
LP
in
tern
, R
ita
Ve
rga
. Th
is t
oo
lkit
is
inte
nd
ed
to
be
an
acc
ess
i-b
le g
uid
e f
or
no
n-la
wye
r a
dvo
cate
s a
ssis
tin
g d
ay
lab
ore
rs a
nd
oth
er
con
tin
ge
nt
wo
rke
rs t
o r
eco
ver
un
pa
id w
age
s. I
t d
eta
ils a
ne
w t
act
ic w
hic
h u
ses
crim
ina
l th
eft
of
serv
ice
la
ws
to h
old
em
plo
yers
ac-
cou
nta
ble
fo
r fa
ilin
g t
o p
ay
wa
ge
s. (
De
cem
be
r 2
00
4)
htt
p:/
/ww
w.n
elp
.org
/do
cUp
loa
ds/
the
ft%
20
of%
20
serv
ice
s%2
0to
olk
it%
2E
pd
f 5
0 S
tate
Ch
art
of
Sta
te L
aw
s C
rea
tin
g C
rim
ina
l Lia
bil-
ity
for
Fa
ilure
to
Pa
y W
age
s. T
his
ch
art
co
llect
s p
rovi
-si
on
s o
f st
ate
la
bo
r a
nd
cri
min
al co
de
s p
rovi
din
g
crim
ina
l p
en
alt
ies
for
un
pa
id w
age
s. (
Fa
ll 2
00
4)
htt
p:/
/ww
w.n
elp
.org
/do
cUp
loa
ds/
crim
ina
l%2
0p
en
alt
ies%
20
for%
20
un
pa
id%
20
wa
ge
s%2
Ep
df
Be
cau
se c
rim
ina
l vi
ola
tio
ns
de
pe
nd
on
th
e
init
iati
ve o
f p
rose
cuto
ria
l a
rms
of
sta
te
age
nci
es,
fe
w c
rim
ina
l a
ctio
ns
are
b
rou
gh
t a
nd
th
ese
la
ws
do
n’t
ha
ve m
uch
o
f a
pra
ctic
al im
pa
ct.
An
im
po
rta
nt
con
sid
era
tio
n f
or
ad
voca
tes
in d
eci
din
g w
he
the
r to
use
“th
eft
of
ser-
vice
” la
ws
ari
ses
in s
tate
s th
at
pro
vid
e
crim
ina
l p
en
alt
ies
for
no
n-p
aym
en
t o
f w
age
s w
ith
in t
he
ir la
bo
r la
ws.
In
su
ch
sta
tes,
pe
na
ltie
s fo
r “t
he
ft o
f se
rvic
e”
in
crim
ina
l co
de
s m
ay
dif
fer
sign
ific
an
tly
fro
m p
en
alt
ies
ava
ilab
le in
la
bo
r co
de
s.
So
, w
hile
cri
min
al “t
he
ft o
f se
rvic
e”
law
s m
ay
serv
e a
s a
n a
lte
rna
tive
ba
sis
for
pro
secu
tin
g u
np
aid
wa
ge
ca
ses,
it
is e
s-se
nti
al to
un
de
rsta
nd
th
e p
en
alt
ies
un
-d
er
ea
ch a
vaila
ble
la
w b
efo
re d
eci
din
g
wh
ich
ro
ute
to
fo
llow
. D
efe
nd
an
ts a
re a
ffo
rde
d g
rea
ter
pro
tec-
tio
ns
in a
cri
min
al a
ctio
n t
ha
n in
a c
ivil
act
ion
. F
or
exa
mp
le,
in c
ert
ain
cri
min
al
act
ion
s d
efe
nd
an
ts h
ave
a r
igh
t to
ap
-p
oin
ted
co
un
sel, a
nd
th
e r
igh
t to
ju
ry
tria
l.
Mo
reo
ver,
cri
min
al p
rose
cuti
on
s m
ust
be
pro
ven
be
yon
d a
re
aso
na
ble
d
ou
bt,
wh
ere
as
civi
l cl
aim
s m
ust
be
p
rove
n o
nly
by
a p
rep
on
de
ran
ce
of
the
e
vid
en
ce
.
Mo
de
l P
ract
ice
E
xam
ple
s N
ote
s
24
E
na
ct p
rovi
sio
ns
req
uir
ing
tha
t a
po
rtio
n o
f ci
vil p
en
al-
tie
s go
to
wa
rd d
eve
lop
ing
ind
ust
ry-s
pe
cifi
c, la
ngu
age
-a
pp
rop
ria
te o
utr
ea
ch a
nd
e
du
cati
on
. S
et
be
nch
ma
rks
for
am
ou
nt
of
ed
uca
tio
n,
com
mu
nit
ies,
in
du
stri
es
tar-
ge
ted
.
CT L
ab
or
Co
de
Se
c. 3
1-6
9a
pro
vid
es
for
a c
ivil
pe
na
lty
of
thre
e h
un
dre
d d
olla
rs f
or
ea
ch v
iola
tio
n a
nd
ad
dit
ion
ally
p
rovi
de
s th
at
“[a
]ny
am
ou
nt
reco
vere
d s
ha
ll b
e d
ep
osi
ted
in
th
e G
en
era
l F
un
d a
nd
cre
dit
ed
to
a s
ep
ara
te n
on
lap
sin
g
ap
pro
pri
ati
on
to
th
e L
ab
or
De
pa
rtm
en
t, f
or
oth
er
curr
en
t e
xpe
nse
s, a
nd
ma
y b
e u
sed
by
the
La
bo
r D
ep
art
me
nt
to
en
forc
e t
he
[la
w].
”
Ed
uca
tio
n s
ho
uld
in
clu
de
rig
hts
bu
t a
lso
h
ow
to
en
forc
e t
he
m
Wh
ere
co
mp
an
ies
are
de
-p
en
de
nt
on
sta
tes
for
li-ce
nse
s to
do
bu
sin
ess
, m
ake
lo
ss o
f lic
en
se a
co
nse
-q
ue
nce
of
vio
lati
ng w
age
a
nd
ho
ur
law
s.
Est
ab
lish
de
ba
rme
nt
as
a
con
seq
ue
nce
fo
r co
ntr
act
ors
w
ho
re
fuse
to
co
mp
ly w
ith
w
age
/ho
ur
law
s.
Ma
ny
sta
tes
ha
ve “
pre
vaili
ng w
age
” la
ws
wh
ere
by
com
-p
an
ies
wh
o f
ail
to p
ay
a liv
ing w
age
are
exc
lud
ed
fro
m
lucr
ati
ve g
ove
rnm
en
t co
ntr
act
s. e
.g., D
E, C
T,
AR
, A
K,
MO
, M
T,
TN
.
Pro
hib
it g
ove
rnm
en
t e
nti
tie
s fr
om
en
teri
ng in
to c
on
tra
cts
wit
h b
usi
ne
sse
s w
ith
a r
e-
cord
of
wa
ge
an
d h
ou
r vi
ola
-ti
on
s.
Str
en
gth
en
or
cre
ate
“h
ot
go
od
s” p
rovi
sio
ns
limit
ing
the
ab
ility
of
ma
nu
fact
ure
rs
or
con
tra
cto
rs t
o s
hip
, d
e-
live
r o
r se
ll go
od
s m
ad
e in
vi
ola
tio
n o
f w
age
an
d h
ou
r la
ws.
Th
e F
ed
era
l F
air
l La
bo
r S
tan
da
rds
Act
ho
t go
od
s p
rovi
-si
on
is
at
2
9 U
.S.C
.§ 2
15
(a
)(1
).
NY
Sta
te’s
la
bo
r la
w h
as
a “
ho
t go
od
s p
rovi
sio
n,”
N.Y
. La
b. L. §
34
5(1
0)(
a)
pro
hib
itin
g d
eliv
er,
sh
ipp
ing o
r sa
le o
f a
pp
are
l m
ad
e in
vio
lati
on
of
the
yw
age
la
ws.
State Agencies Can Combat Wage Theft
Mo
de
l P
ract
ice
E
xam
ple
s N
ote
s
25
Justice for Workers
O
TH
ER
GO
VE
RM
EN
T E
NTIT
IES
CA
N B
E E
MP
OW
ER
ED
TO
EN
FO
RC
E W
AG
E/H
OU
R L
AW
S
En
act
mu
nic
ipa
l o
rdin
an
ces
tha
t p
rovi
de
fo
r cr
imin
al p
en
alt
ies
refl
ect
ing e
xist
ing s
tate
la
ws.
Ka
nsa
s C
ity
Co
un
cil su
pp
lem
en
ted
a t
he
ft o
f se
rvic
e o
rdin
an
ce
wit
h la
ngu
age
sp
eci
fica
lly d
esi
gn
ati
ng a
n e
mp
loye
r’s
failu
re
to p
ay
wa
ge
s a
s a
th
eft
of
serv
ice
vio
lati
on
. (S
ee
Ka
nsa
s C
ity
Ord
ina
nce
04
09
64
).
Au
stin
, TX
—co
mm
un
ity
ad
voca
tes
an
d p
ub
lic s
erv
an
ts in
Au
stin
jo
ine
d f
orc
es
in 2
00
2 t
o r
esu
scit
ate
an
exi
stin
g c
rim
ina
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26
Justice for Workers
Appendix B: State Attorneys General: Model Practices Enforcing Worker Rights
27
State Model Practice
Arizona In AZ, the Attorney General issued an official opinion limiting the negative impact of Ari-zona’s Proposition 200 on AZ’s immigrant population. The AZ AG also investigated the staffing agency Labor Ready for violating check cashing fee provisions, and brokered a settlement for the workers. Recently, the AG settled with an-other construction temporary staffing firm for illegal check cashing and for prohibiting work-ers from accepting permanent jobs with worksite/ client employers. AP Nov. 20, 2005. The AZ AG signed on to the amicus brief urging the U.S. Supreme court to overturn the Hoff-man Plastic Compounds decision, which limited undocumented workers’ rights to backpay under labor law.
California In CA, the AG created an Office of Immigrant Services to educate immigrants about worker and other rights.
The CA AG wrote an amicus brief in support of immigrant worker advocates who were sued for defamation by a company that had been accused of violating workers’
rights. Garment Workers Center v. the Superior Court of Los Angeles, 117 Cal. App.
4th 1156 (2004) Worker advocates in CA are urging the AG to use their three new staff positions to prose-cute Unfair Competition Law violations (CA Bus. & Prof. Code § 17200) against businesses that violate CA labor and employment laws. Many other states have these unfair business and professions code laws. The CA AG signed on to the amicus brief urging the U.S. Supreme court to overturn the Hoff-man Plastic Compounds decision, which limited undocumented workers’ rights to backpay under labor law.
Connecticut CT’s AG accepts complaints from unions about construction contractors’ failure to pay pre-vailing wages and is aggressive about debarring contractors from bidding on public pro-jects.
Florida FL’s AG issued an opinion letter in 2005 regarding the new state minimum wage’s applica-bility to state employers. See http://myfloridalegal.com/ago.nsf/printview/9C862F43CF6B97D7852570C20057767B
Hawaii The HI AG signed on to the amicus brief urging the U.S. Supreme court to overturn the Hoff-man Plastic Compounds decision, which limited undocumented workers’ rights to backpay under labor law.
Illinois The IL AG wrote an amicus brief on behalf of workers and patients at a large public hospital in Chicago. New law in Illinois permits state AG explicitly to investigate employment discrimination com-plaints. http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=093-1017&GA=093
State Agencies Can Combat Wage Theft
28
Justice for Workers
Maryland The MD AG is encouraging county prosecutors to enforce the state “theft of services” crimes to recover unpaid wages for day laborers and other low-wage workers. Many states have laws prohibiting theft of services in the employment context. For a listing of those states, see, http://www.nelp.org/docUploads/criminal%20penalties%20for%20unpaid%20wages%2Epdf. The MD AG issued an official opinion stating that the state Department of Motor Vehicles could not deny an individual a drivers’ license based on that person’s immigration status. The MD AG, along with its state DOL, audited home health care temp agencies that mis-classified workers as “independent contractors” under the state unemployment insurance (UI) law, and brought a case to stop the misclassification so that the workers received UI benefits.
Massachu-setts
The MA AG is directly charged with enforcing state wage and hour and other employment laws, so it has more responsibility and more direct power than many state AG’s in the labor and employment field. Mass. Gen. Laws Ch. 149 §§ 2-3. The MA AG filed an amicus brief urging coverage under workers’ compensation for an un-documented worker under MA state law. Medellin v. Cashman KPA, No. 2004-J-0017 (Mass. App. Ct.). The MA AG brought suit against temporary agencies for workers’ compensation fraud and for misclassifying employees as “independent contractors.” The MA AG filed an amicus brief on behalf of immigrant janitors who were denied unem-ployment insurance benefits because their employer called them “franchisees” instead of “employees.” Coverall North America v. Comm’r Unemployment Assistance, No. SJC-0982. The MA AG signed on to the amicus brief urging the U.S. Supreme court to overturn the Hoffman Plastic Compounds decision, which limited undocumented workers’ rights to back-pay under labor law.
Nebraska The Nebraska Appleseed-led coalition of union and community groups worked closely with the NB AG to combat misclassification of employees as independent contractors, primarily in the construction industry. The community groups investigated and developed the facts of targeted misclassification, and the AG responded with some enforcement actions.
New York The NY AG is one of a handful of state AG’s with a dedicated labor bureau, with a staff that handles complaints and investigates workplace abuses under NY’s Executive law. The NY AG has investigated, assisted in the settlement of, and prosecuted numerous sweatshop cases, usually in tandem with community organizing groups and unions. Some highlights include brokering a community-backed green grocer’s Code of Conduct for the small green grocers in NYC, requiring the signatories to comply with wage and hour laws and to permit future monitoring by the AG http://www.oag.state.ny.us/press/2002/sep/sep17a_02.html, and netting over six million dollars in unpaid minimum wage and overtime pay for West African immigrant delivery workers with the National Employment Law Project. See, e.g., Ansoumana et al v. Gristedes et al, 255 F. Supp.2d 184 (SDNY 2003).
29
Notes
The listed practices are illustrative only, and are not a comprehensive catalog of state AG activities in labor and employment law enforcement.
New York (cont)
NY AG used the state “hot goods” provision to get a preliminary injunction enjoining gar-ment companies from “shipping, delivering, selling or purchasing ‘hot goods’ produced unlawfully,” Spitzer v. 14 West Garment Factory Corp., 182 Misc. 2d 146 (S.Ct. N.Y. County 1999). The NY AG also brought investigations against numerous employment agencies that were charging finders’ fees and requiring deposits from immigrant workers looking for jobs. The NY AG established a day labor task force to stem wage payment and other abuses against day laborers. The NY AG signed on to the amicus brief urging the U.S. Supreme court to overturn the Hoffman Plastic Compounds decision, which limited undocumented workers’ rights to back-pay under labor law. The AG also wrote an opinion letter stating that undocumented worker rights under NY state law were not preempted by Hoffman Plastic. Formal Opinion No. 2003-F3, N.Y. Op. Atty. Gen. No. F3, 2003 W 22522840 (N.Y.A.G. October 21, 2003).
Oregon OR’s AG works with farmworker and other advocates in its Immigration Fraud Task Force to fight unfair charges by fake immigration agencies that prey on low-wage earners.
Puerto Rico The PR AG signed on to the amicus brief urging the U.S. Supreme court to overturn the Hoffman Plastic Compounds decision, which limited undocumented workers’ rights to back-pay under labor law.
West Virginia The WV AG signed on to the amicus brief urging the U.S. Supreme court to overturn the Hoffman Plastic Compounds decision, which limited undocumented workers’ rights to back-pay under labor law.
State Agencies Can Combat Wage Theft
30
Page 30
Justice for Workers
Appendix C : Agency Enforcement of Criminal Laws Criminal Laws Compared To Civil Wage And Hour Laws Criminal “theft of services” laws do not provide the same level of remedies to workers as state and federal civil wage and hour laws. Civil wage and hour laws generally establish a minimum wage and provide, in addition to recovery of unpaid wages and overtime pay, for additional damages and protection against retaliation. Criminal “theft of services” laws may have large criminal penalties, but they do not go to the worker. Additionally, the standard for proving that an employer has violated a criminal law is much higher than the standard under civil wage and hour laws. While an individual can bring an action in court to enforce her rights under civil wage and hour laws, only law enforcement agents – for example, the police and prosecutors – can enforce criminal laws. Criminal Laws And Campaigns While criminal laws may not be a perfect solution to the widespread problem of employers’ failure to pay workers the wages they are due, organizers and advocates may want to consider whether they might be useful in campaigns to highlight the problem and to demonstrate to employers the consequences of breaking the law. A toolkit for advocates on using these laws in campaigns is available at: http://www.nelp.org/docUploads/theft%20of%20services%20toolkit%2Epdf In deciding whether to engage in a campaign to enforce criminal laws for employers’ failure to pay wages, it is important to carefully weigh the pros and cons of the various approaches. Ultimately, law enforcement agents alone have the power to enforce these laws, and organizing groups may not be able to control the direction a campaign takes. If the choice is made to pursue this type of campaign, it is important to develop good relationships with the law enforcement agencies, seek guarantees that the agencies will not be enforcing immigration laws and ensure that workers are aware of the costs and benefits of taking this approach. Possible Campaign: Partnering With Police To Enforce “Theft Of Services” Laws One approach that advocates have taken is to develop a partnership with the police to enforce theft of services provisions. Experience has shown that it is important to develop a relationship with the police department and to engage in education about how the laws will be enforced rather than to rely on individual officers to enforce them. Low wage workers are very likely to have legitimate concerns about partnering with the police. As community members, they may have had previous bad experiences with the police. Moreover, they may be concerned that the police will ask them questions about their or their co-workers’ immigration status.
31
It is extremely important, if partnering with the police to have a guarantee that they will not en-gage in immigration enforcement. The National Immigration Law Center (NILC) has gathered a list of state and local non-cooperation ordinances and policies which is available at http://www.nilc.org/immlawpolicy/LocalLaw/. If your city does not already have one, getting one adopted should be the first step in your campaign. If your city does have one, you should en-sure that it is being followed. Similarly, it is essential that there is a clear police procedure for dealing with theft of services complaints and that workers and organizers know what to expect from the police. Possible Campaign: Enacting A Theft Of Services Law At The Local Level In states that do not have such criminal laws, advocates may consider the possibility of a mu-nicipal ordinance criminalizing failure to pay wages. This can have the effect of drawing atten-tion to the problem of non payment of wages and stigmatizing bad employers. Advocates in Kansas City, Mo took this approach and in 2004, the city passed Ordinance No. 040964. Possible Campaign: Partnering With State Attorney General To Enforce Criminal Viola-tions Of Labor Code In some states, the Attorney General (AG) is empowered to enforce criminal provisions of the state labor code. This may also be within their inherent authority. NELP has developed a 50-state chart of the powers of AGs which is available at: http://www.nelp.org/docUploads/State%20Jurisdiction%20Chart%2Epdf. Groups organizing to combat severe employer violations of wage and hour laws may consider developing a relationship with their state AG to ensure that bad employers are prosecuted un-der the criminal provisions of the state labor code. As when partnering with the police, it is important to get a clear commitment from the Attorney General’s office that it will not be enquiring into immigration status or enforcing immigration law. The New York State Attorney General has issued a formal opinion that immigration status is not relevant to enforcement of state wage and hour laws. This opinion is available at: http://www.oag.state.ny.us/lawyers/opinions/2003/formal/2003_f3.html. It may be useful to see if your state Attorney General would be interested in issuing a similar opinion.
State Agencies Can Combat Wage Theft
32
Appendix D : Model Agency Policy for Hoffman-fix
July 2006
Goal: reduce illegal employer behavior. Workers themselves are in the best position to report employer abuse – but only if they are not afraid of immigration consequences.
Increase enforcement of state labor laws. Economic incentives that an employer might gain from
hiring undocumented workers should be eliminated by targeted enforcement of labor laws in favor of all workers, especially those in low-wage industries.
States should ensure that their workers’ compensation, health and safety, wage and hour and dis-
crimination laws protect all workers no matter what their immigration status, that they target in-vestigations to the industries known for violation of labor laws, and that their agency proce-dures ensure access to state enforcement mechanisms for all workers.
States should ensure that they provide access to bilingual employees, that they do not interrogate
workers about their immigration status, and that they do not create other artificial barriers to enforcement of immigrant workers’ rights.
MODEL STATE LABOR AGENCY POLICIES REGARDING ENFORCEMENT OF LABOR AND EMPLOYMENT
LAWS ACROSS THE BOARD Anti-discrimination laws: State agencies responsible for enforcing anti-discrimination laws may
adopt the following policy: All workers, regardless of immigration status, are covered by state anti-discrimination employment
laws, and are eligible for all remedies under the law unless explicitly prohibited by federal law. The [Agency Name] will: Investigate complaints of violations of the anti-discrimination in employment laws and file court ac-
tions to seek and collect back pay, compensatory and punitive damages, and all other appropri-ate remedies, including equitable relief. This shall be done without regard to the worker’s immi-gration status, unless explicitly prohibited by federal law.
Investigate retaliation complaints and file court actions to collect back pay owed to any worker who was the victim of retaliation for having complained about unlawful discrimination, without regard to the worker’s immigration status, unless explicitly prohibited by federal law.
The [Agency Name] will not ask a complainant or witness for their social security number (SSN) or other information that might lead to disclosing an individual’s immigration status, will not ask workers about their immigration status and will not maintain information regarding workers’ im-migration status in their files.
During the course of court proceedings, the [Agency Name] will oppose efforts of any party to dis-cover a complainant’s or witnesses’ immigration status by seeking a protective order or other similar relief.
In the rare occasion that [Agency Name] must know the complainant’s immigration status, it will
Better Enforcement of State Labor and Employment Laws Across the Board
33
keep that status confidential, and will have a policy of nondisclosure to third parties (including to other state or If a party raises the issue of an injured worker’s or witnesses’ immigration status in the course of proceedings, the party must show that the evidence is more probative than preju-dicial, and that it obtained such evidence in compliance to 8 CFR § 274a.2(b)(1)(vii).
[Agency Name] will train its staff (including intake officers, investigators, attorneys, and other rele-vant staff) on this policy and will work closely with community-based organizations to conduct this training.
[Agency Name] will make reasonable efforts to work closely with community-based organizations to conduct outreach and education to the immigrant community on this policy.
PRO-WORKER POLICIES FOR ENFORCING LABOR AND EMPLOYMENT LAWS. State outreach programs and community partnerships with interfaith, day labor, legal ser-
vices, consulates and other groups to educate and refer workers.
A highly successful partnership between USDOL and the National Interfaith Committee for Worker
Justice performs outreach in immigrant communities, trainings in workers’ centers and churches,
and negotiates wage payments. When NICWJ cannot resolve a dispute, USDOL takes over. http://
www.nicwj.org/pages/outreach.DOL.html
A partnership between the Washington State Department of Labor and Industries, CASA Latina Day
Labor Center, and the King County Bar Association recruits and trains lawyers and law students
who volunteer their time to collect wages owed to day laborers, relying on the state agency when
negotiations fail.
Enforcement strategies that focus on misclassification of workers. Misclassification of workers as
“independent contractors” is a large and growing problem that denies low-wage workers the protection
of labor laws. In the past year alone, state audits of unemployment insurance systems found an in-
crease of 42% in the number of workers misclassified as independent contractors.
California was the first state to create a “Joint Enforcement Strike Force” to focus on misclassifica-
tion of workers as “independent contractors.” Through this, tax and labor agencies created an
“Employment Enforcement Task Force to perform onsite inspections and audits of susbect small
companies based on reasonable belief of violations of tax and employment laws. In 2002, the Task
Force collected $74 million in unpaid wages and $10 million in payroll tax assessments. http://
www.edd.ca.gov/taxrep/txueoindtx.htm#EETF
Labor agency investigators are in a position to refer important “joint employer” cases to state Attor-
neys General and to the private bar. Establishment of “joint employer” liability is a powerful tool to
protect low-wage workers. The New York Attorney General’s office has aggressively pursued wage
claims against joint employers, participating in the first modern use of the joint employment theory
under New York law against large supermarket and drugstore chains for unpaid wages due to deliv-
ery workers misclassified as independent contractors. http://
www.oag.state.ny.us/2000AnnualReport.pdf
State enforcement policies that are targeted to low-wage work and abusive industries, and that emphasize recovery for the entire workforce (rather than just the complainant). Some state agen-cies view themselves as the first line of defense against wage abuses for low-wage workers who cannot afford attorneys. Some have targeted industries known for low-wages and high levels of wage viola-tions, such as janitorial, garment, day labor, temporary agencies.
The New York State Attorney General’s Office targeted greengrocers for violations of the labor law
34
and ultimately developed an industry code of conduct http://www.oag.state.ny.us/press/2002/sep/sep17a_02.html.
The California Targeted Industries Partnership Program focuses on the apparel, agriculture, restau-rant and janitorial services industries. The Construction Enforcement Project focuses on the con-struction industry. The Janitorial Enforcement Project focuses on the janitorial and building mainte-nance industry. http://www.dir.ca.gov/dlse/tipp4.htm
State or local legislation that authorizes complaints “on behalf of others.
San Francisco’s city minimum wage ordinance, authorizes community groups and unions to file complaints, without having to show that the workers not being paid are their members. http://www.ci.sf.ca.us/site/uploadedfiles/oca/living_wage/nw/ordinance.pdf.
State living wage or minimum wage laws that earmark fines recovered from violators to fund
new enforcement.
The San Francisco minimum wage ordinance provides for employer fines to be provided to the city
In order to offset the costs of investigating and remedying the violation. http://www.ci.sf.ca.us/
site/uploadedfiles/oca/living_wage/nw/ordinance.pdf POLICIES AFFIRMING A COMMITMENT TO PERFORMING ITS DUTIES WITHOUT REGARD TO THE IMMIGRATION
STATUS OF WORKERS WHO COME BEFORE IT. DRAFT LAW OR EXECUTIVE ORDER PREVENTING LOCAL ENFORCEMENT OF IMMIGRATION LAW PURPOSE AND POLICY STATEMENT WHEREAS, immigrants, who live and work in [insert location] contribute to our community. Over
X% of the residents of [insert location] were classified as foreign-born in the 2000 census. WHEREAS, immigrants work in some of the lowest-paid and highest risk jobs in the community and
are frequently subject to abuse. WHEREAS, all too often, low-road contractors rely on employees fear about the immigration conse-
quences of dealing with government agents to prevent them from speaking out about abuses on the job.
WHEREAS, the cooperation of all members of the community, regardless of immigration status, is essential to law enforcement.
WHEREAS there is a need for a clear statement of policy to provide guidance to county employees and to promote the safety and health of all community members.
WHEREAS preserving the confidentiality of certain information is integral to the operation of County government.
This order/ ordinance supercedes all conflicting policies, ordinances, rules, procedures and prac-tices.
DEFINITIONS “Citizenship, immigration, or residency status”: All matters regarding questions of citizenship of
the United States or any other country, questions of authority from the Department of Homeland Security to reside or otherwise be present in the United States, and the time or manner of a per-son’s entry into the United States. The use in this order of the term “residency” shall not mean street address or location of residence in county or elsewhere.
“[geographic unit] agency”: Any and each entity directly controlled by the [geographic unit]. “[geographic unit] agents”: Any and each employee, including those who work in public safety,
employed directly by the [geographic unit]. “Confidential information”: Any information obtained and maintained by a [geographic unit]
agency relating to an individual’s sexual orientation, status as a victim of domestic violence, status as a victim of sexual assault, status as a crime witness, receipt of public assistance, or
35
immigration status, and shall include all information contained in any individual’s income tax re-cords.
“General [geographic unit] services”: All services except those specifically listed as public safety services.
“Illegal activity”: Unlawful, criminal activity but shall not include mere status as an undocumented immigrant.
“Immigrant”: Any person who is not a citizen or a national of the United States. “Law enforcement entities”: Police, probation, sheriff’s office, OTHER? “Public safety services”: Police and fire departments, Emergency Medical Service (EMS) authori-
ties, [geographic unit] Attorney’s office. “Undocumented immigrant”: A noncitizen who does not have lawful immigration status, in viola-
tion of federal civil immigration laws.
Section 1. [geographic unit] SERVICES
(A) [geographic unit] agents shall not inquire into the immigration status of any individual, nor shall [geographic unit] agents enforce federal civil immigration laws.
(B) [geographic unit] agents shall follow general county, state, and federal guidelines to assess eligibility for services. A [geographic unit] agent shall not inquire about a person’s immigration status unless: (1) such person’s immigration status is necessary for the determination of pro-gram, service or benefit eligibility or the provision of city services; or (2) such agent is required by law to inquire about an individual’s immigration status.
(C) The presentation of a photo identity document issued by the person’s country of origin, such as a foreign driver’s license, passport, or matricula consular (consulate-issued document) shall be accepted and shall not subject the individual to a higher level of scrutiny or different treatment than if the person had provided a X State driver’s license. This paragraph does not apply to I-9 forms.
Section 2. LAW ENFORCEMENT
(A) Unless otherwise required by law or court order, [geographic unit] agents shall refrain from the enforcement of federal immigration laws. No county agents, including agents of law en-forcement entities, shall use county monies, resources, or personnel solely for the purpose of detecting or apprehending persons whose only violation of law is or may be a civil immigration violation.
(B) Police officers are exempted from the above limitations, with respect to a person whom the officer has reasonable suspicion to believe: (1) has been convicted of a felony criminal law violation; (2) was deported or left the United States after the conviction; and (3) is again present in the United States. (C) County agents shall not single out individuals for legal scrutiny or enforcement activity based solely on their country of origin, religion, ethnicity or immigration status.
Section 3. VICTIM AND WITNESS PROTECTION
(A) It shall be the policy of public safety services departments not to inquire about the immigration status of crime victims, witnesses, or others who call or approach county agents seeking assistance. (B) A [geographic unit] agent who provides public safety services shall not request specific documents for the sole purpose of determining an individual’s civil immigration status. However, if offered by the individual and not specifically requested by the agent, it is permissible to rely on immigration documents only to establish that individual’s identity in response to a general request for identification.
Section 4. CONFIDENTIALITY OF INFORMATION
(A) No [geographic unit] officer or employee shall disclose confidential information, unless: Such disclosure has been authorized in writing by the individual to whom such information pertains, or
if such individual is a minor or is otherwise not legally competent, by such individual’s parent or legal guardian; or
Such disclosure is required by law; or Such disclosure is to another city officer or employee and is necessary to fulfill the purpose or achieve
36
the mission of any [geographic unit] agency; or In the case of confidential information other than information relating to immigration status, such dis-
closure is necessary to fulfill the purpose or achieve the mission of any [geographic unit] agency; or
In the case of information relating to immigration status, (a) the dissemination of such information is necessary to apprehend a person suspected of engaging in illegal activity, or (b) such disclosure is necessary in furtherance of an investigation.
37
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Justice for Workers
Endnotes 1. Urban Institute, A Profile Of The Low-Wage Immigrant Workforce (Nov. 2003), available at, http://www.urban.org/UploadedPDF/310880_lowwage_immig_wkfc.pdf. 2.United States Department of Labor, Bureau of Labor Statistics, A Profile of the Working Poor, 2003, (March 2005), available at, http://www.bls.gov/cps/cpswp2003.pdf. 3. U.S. Department of Labor, Bureau of Labor Statistics, A Profile of the Working Poor, 2004 (May 2006); David Weil, Compliance With the Minimum Wage: Can Government Make a Difference?, at 10-11, 30 (May 2004). 4. Urban Institute, A Profile Of The Low-Wage Immigrant Workforce (Nov. 2003). In the report, the authors note that “In 2001, the federal minimum wage was $5.15. Alaska, California, Connecticut, Delaware, the District of Columbia, Hawaii, Massachusetts, Oregon, Rhode Island, Vermont, and Washington set their minimum wages above the federal standard.” Id., at 2, n.7. 5. Andrew Sum, Neeta Fogg, Paul Harrington, et al., Immigrant Workers and the Great American Job Machine: The Contributions of New Foreign Immigration to National and Regional Labor Force Growth in the 1990s, Center for Labor Market Studies, Northeastern University (Aug. 2002) at 27, table 14. http://www.nupr.neu.edu/12-02/immigration_BRT.PDF. 6. Id., at 20, table 8. 7. Id, at 41. 8. Jeffrey S. Passel, Estimates of the Size and Characteristics of the Undocumented Population, Pew Hispanic Center (March 2005), at, 4, available at, http://pewhispanic.org/files/reports/44.pdf. 9. Id., at 3. 10. U.S. Department of Health and Human Services, 2006 Poverty Guidelines, available at http://aspe.hhs.gov/poverty/06poverty.shtml. 11 Annete Bernhardt and Siobhan McGrath, Trends in Wage and Hour Enforcement by the U.S. Department of Labor, 1975-2004, available at http://www.brennancenter.org/programs/downloads/trendswageshours.pdf. 12. For more information about the harms to workers and the economy that stem from independent contractor abuses, see, NELP Fact Sheet: 1099’d: Misclassification of Employees as Independent Contractors, available at http://www.nelp.org/docUploads/independent%20contractor%20misclassification%2Epdf. 13. See, Siobhan McGrath, A Survey of Literature Estimating the Prevalence of Employment and Labor Law Violations in the US. (2005) (on file with NELP); U.S. Department of Labor, Employment Standards Administration, FY 2000 Annual Performance Report Summary
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(March 2001); Deborah Thompson Eisenberg, The Feudal Lord in the Kingdom of Big Chicken: Contracting and Worker Exploitation by the Poultry Industry (2002); Restaurant Opportunities Center of New York and NY City Restaurant Industry Coalition, Behind the Kitchen Door: Pervasive Inequality in New York City’s Thriving Restaurant Industry (Jan. 2005); U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Only One-Third of Southern California Garment Shops in Compliance with Federal Labor Laws, New Release—USDOL– 112/August 25, 2000; U.S. Department of Labor, Nursing Home 2000 Compliance Fact Sheet (2000).
State Agencies Can Combat Wage Theft
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